Richard Price writes on the Bach trademark appeal. Richard Price is a partner at Taylor Joynson Garrett.


Ironically, Dr Edward Bach, who discovered his healing flower remedies, died young. But before his death, he published his methods widely.

Healing Herbs of Hereford recently applied for the trademark registrations of Bach to be revoked on the grounds that they were generic. The defendant, Bach Flower Remedies, argued that Bach and Bach Flower Remedies were rightly registered. For other makers to describe their products as "flower remedies made in accordance with the teachings of Dr Edward Bach" was acceptable, it said, but not as "Bach flower remedies".

The Court of Appeal ruled for Healing Herbs. Lord Justice Morritt said it "must be entitled, in order to avoid such a circumlocution, to describe them as 'Bach Flower Remedies'".

Some practice points arise from the case. The defendant's solicitors assembled their witnesses to a large extent by relying on a National Opinion Poll Omnibus survey which asked more than 19,500 people about their knowledge of flower remedies. The judge rejected this evidence as too unreliable.

The Court of Appeal found it failed to produce more than 10 witnesses who considered the mark distinctive of origin. Lord Justice Morritt said: "Even as a witness gathering exercise, it was hardly successful."

The calling of scores of witnesses was also criticised. More than 80 witnesses were cross-examined. The Court of Appeal discouraged such a quantity of evidence in the future. I have sympathy with this but quite how a judge will learn the views of the "average consumer" otherwise is unclear.

The issue of delay is still with us. The passage of cases to trial, both pre and post-Woolf, has been greatly improved. The Court of Appeal judges dealt with the Bach hearing efficiently and gave their reserved judgment quickly. It is unfortunate however that, whereas trials such as these regularly come on inside a year, it took 17 months for the appeal to be heard. Any appeal to the House of Lords could take another year or so, and a reference to the European Court of Justice two or three years.

Until this problem is cracked, many users of our legal system will continue to think that justice delayed is justice denied.