Trade Mark Law and Sharing Names

Trade Mark Law and Sharing Names

Exploring Use of the Same Mark by Multiple Undertakings

Edited by IIanah Simon Fhima

There are a number of points throughout the trade mark system where multiple undertakings share the same name, either unwillingly, or by consent. In this timely book, expert contributors address this controversial issue and identify the various points at which names are shared. This unique book uses both historical and interdisciplinary perspectives, as well as more traditional legal methodology, to examine the practical and theoretical implications of such name sharing for the parties involved. It analyses what can be learned from the sharing process about the nature of the trade mark system and the interests which it protects. General themes relating to the nature and purpose of trade mark law are also discussed.

Chapter 9: The Own-Name Defence in Relation to Registered Trade Mark Law

Ashley Roughton

Subjects: law - academic, intellectual property law


Ashley Roughton 1. INTRODUCTION There is much case law and some statute law relating to whether a person can use their own name or address in the course of trade as identifying their goods or services in circumstances where the use of that term could otherwise be restrained. Before looking at the detail of the law, we may want to consider a question of principle, viz, why should any legal system provide a sanction in relation to the use of an individual’s name or address on the grounds that trade is being interfered with? Those things are, after all, labels which are given to that individual by society or by others or sometimes chosen or adopted by the individual or company concerned. Of course there are always cases where individuals deliberately choose names or addresses which are intended to confuse and deceive, but such persons are not deserving of sympathy, and consideration of their position can be left to one side when considering the more difficult policy aspects of the law. Moreover, one need not take into account situations where the use of one’s own name and address is neither used, nor intended to be used, for trade or where it is intended to be used for trade but fails in that respect. Conversely one cannot leave out of the account situations where one’s name or address is not intended to be used for the purposes of trade but ends up being recognized as a badge of trade. The situation...

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