Northampton Solicitors

When a document contains errors, the court will often act to ensure that commercial common sense dictates its interpretation.

 

In a recent case, a farmer sought to avoid an estate rentcharge for roads and sewers on the farm estate whe n the covenants in the land transfer documents contained errors and omissions.

 

Concluding that the rentcharge was not intended to yield a profit but merely to allocate the costs to the occupier of the land, the court ruled that the documents had to be construed to give effect to the ‘missing covenant’.

 

The decision was also influenced by case law which provides that a person who takes the benefit of a deed cannot avoid a burden which attaches to it.

The High Court has confirmed that a trade mark refers to the general impression given by the mark, not to the details of the mark and this can include auditory and conceptual factors as well as purely visual ones.

 

The important issue is whether the average consumer would be misled bearing in mind that the mark is perceived as a whole, not by its individual parts.

 

Merely creating a mark that is subtly different from a trade mark may well be insufficient to prevent an action for violation of the trade mark or ‘passing off’ (deriving an economic benefit from it) if the overall impression is similar. For advice on all trade mark and other intellectual property matters, contact us.

 

The case arose when the international toy manufacturer Hasbro alleged that its trade mark ‘PLAY-DOH’ had been infringed by a company selling ‘Play Dough’, an edible dough for children. The marks were not similar in appearance, nor were the products physically identical.

 

The defendants argued that PLAY-DOH had become synonymous with modelling clay and was thus so generic in meaning that it had lost its distinctiveness. It would not therefore qualify for trade mark protection. They also argued that if the words PLAY-DOH could be extended to cover ‘Play Dough’, then they lacked ‘distinctive character’, which is a necessity for a trade mark to be enforceable.

 

The court rejected both arguments.

 

It is good sense to make sure that you research trade marks before you start to use any trading style.We can assist you to make sure that you do not infringe others’ trade marks, and help you to protect your own trade marks and the rights attached to them.