Exploring Use of the Same Mark by Multiple Undertakings
Edited by IIanah Simon Fhima
Chapter 9: The Own-Name Defence in Relation to Registered Trade Mark 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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