HAVE A BREAK and the changing demands of trademark registration
Article
Davis, J. and Durant, A. 2015. HAVE A BREAK and the changing demands of trademark registration. Queen Mary Journal of Intellectual Property Law. 5 (2), pp. 132-156. https://doi.org/10.4337/qmjip.2015.02.02
Type | Article |
---|---|
Title | HAVE A BREAK and the changing demands of trademark registration |
Authors | Davis, J. and Durant, A. |
Abstract | This article explores, from the point of view of both law and linguistics, how far the application and effect of the law of registered trade marks is shaped not only by legislative initiative but also by changing consumer behaviour and the shifting linguistic currency of the particular signs used (or proposed for use) as marks. It does so by focusing on the thirty-year campaign to register HAVE A BREAK for a chocolate bar, marketed as ‘KitKat’. It considers the changing approach of courts both to inherent distinctiveness and to distinctiveness acquired through use. It also considers the relationship between the average consumer test for distinctiveness and the public interest in leaving certain signs free. It suggests that while the present trade mark regime is open to the registration of slogans, it is not clear that courts have sufficiently considered the public interest implications of increasing trade mark protection in this way. |
Keywords | trade mark registration, slogans, public interest, Trade Mark Directive (2008/95/EC) |
Publisher | Edward Elgar |
Journal | Queen Mary Journal of Intellectual Property Law |
ISSN | 2045-9807 |
Electronic | 2045-9815 |
Publication dates | |
30 Apr 2015 | |
Publication process dates | |
Deposited | 29 May 2015 |
Output status | Published |
Accepted author manuscript | |
Copyright Statement | © Davis, J., & Durant, A. (2015). The definitive, peer reviewed and edited version of this article is published in Queen Mary Journal of Intellectual Property, 5(2) pp. 132-156, 2015 |
Digital Object Identifier (DOI) | https://doi.org/10.4337/qmjip.2015.02.02 |
Language | English |
https://repository.mdx.ac.uk/item/857w5
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