Douglas Campbell, barrister, 3 New Square

Time for a trade mark rethink

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  • There is a second issue, which stems from the Dyson case - that of concepts and signs. The CJEU ruled on this point and so unfortunately the C0A's hands were tied. What is required is a new reference to the CJEU since Dyson and these new cases are in direct conflict with the earlier colour law cases.

    Unfortunately, the word predominantly WAS unclear in this case - the evidence was that Cadbury's experts' view on the meaning of the term did not coincide with the normal meaning of the word - so they were always likely to lose on the question of whether the description of the mark is clear, precise and intelligible.

    Of course, concluding that any mark which inherently contains multiple forms is not registrable rules out sound marks based upon staves, gesture marks and colour marks per se.

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