The silent salesman becomes a European reform of the United Kingdom Trade Mark Law

Abstract

The aim of this thesis is to examine the functional development of trade mark use from a legal and economic perspective, in order to assess the potential impact of the Trade Marks Act 1994 on the protection of registered rights in the United Kingdom.
Trade marks play a vital role in the marketing and retail of goods in the 1990's. They are a helpful aid to the bewildered consumer and a valuable asset to businesses of all sizes. An examination of these economic roles alongside existing legal theory suggests, however, that it is questionable whether the system of protection which has evolved under British law can adequately protect the potential of these commercial symbols. The concept of trade mark function is central to the nature and scope of registered rights. Both statute and case law show that traditional legal theories have been manipulated rather than altered to facilitate changes in commercial practice. Despite the flexibility of these theories, the creation of the European Economic Community led to an extensive reassessment of trade mark registration at both a national and
European level.
The new United Kingdom Trade Marks Act, which came in force on October 31st 1994, is part of a programme of reform taking place on a European-wide scale which is intended to harmonise the national trade mark law of Member States, to enable the creation of a Community Trade Mark. The Act intends to overhaul our system of national rights bringing them in line with other Member States. As part of this thesis, consideration will be given to whether the reworking of key legislative concepts to create a system of protection reflective of the economic realities of trade mark use across the Community is more adept at serving the needs of the modern market place.
The aims of the thesis have been achieved by an assessment of the evolution of the United Kingdom's system of trade mark registration, which relies on an extensively researched bibliography. A questionnaire was sent out to one hundred and fifty firms which exported goods to Western Europe in order to discover how firms used and protected their marks, but this only provided information which was anecdotal in nature. From the questionnaire replies, it was clear that small to medium firms were not aware how to protect their marks either on a national or a European level, and in some cases they were even confused over what a "trade mark" comprised. These disappointing results led to reliance on academic writing and case law in the research and writing of thesis.