Exploring Use of the Same Mark by Multiple Undertakings
Edited by IIanah Simon Fhima
Chapter 6: The Business End of Collective and Certification Marks
Dev Gangjee In the semiotic ecosystem of European trade mark law, certification and collective marks are shy beasts, rarely sighted in law reports or administrative decisions. According to Jeremy Phillips, ‘taking a panoramic sweep across the peaks and troughs of . . . trade mark law, they are few in number and cast almost no shadow’,1 while the editors of Kerly more sedately observe that there ‘has been little litigation concerning certification trade marks’.2 Such marks, jointly referred to as association marks for the purposes of this chapter,3 facilitate voluntary name sharing and have existed for over a century. Yet a recurring lament is that they remain underutilized and underappreciated.4 This is unsurprising, considering their unusual functional niche and tentative integration into a system of protection historically premised on a sign’s ability to indicate a single trade origin. There have been few decisions concerning the registration of such signs or on the scope of protection afforded to them, but this state of affairs may finally be changing. This chapter explores the assimilation of association marks into the mainstream of European registered trade mark law by drawing on a series of recent registry-level decisions in the UK5 and at the Office for Harmonization in the Internal Market (OHIM) Registry,6 1 J. Phillips, Trade Mark Law: A Practical Anatomy (Oxford University Press, Oxford 2003), p. 621. 2 D. Kitchin et al., Kerly’s Law of Trade Marks and Trade Names (14th edn, Sweet & Maxwell, London, 2005) at para. 12-023. 3 In doing so...
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