Brands jumping on a bandwagon
Brexit. It’s the word on everyone’s lips, whether used by way of celebration or invoked as a profanity. Brexit, Brexit, Brexit… Quite possibly already the ugliest term in the history of witless political portmanteaux (however much we love being able to use that plural!) and now also the subject of an unlikely trend in trade mark applications. At the last count, we found 22 trade mark applications worldwide and 1 already successfully registered: everything from mobile phone cases and belts to baked beans, biscuits and beer in 32 countries. There’s also an application for BREXIT – THE MUSICAL (which seems to threaten exactly that) and the quirky sounding FREXIT BREXIT (in case the neighbours get any ideas). More worryingly for us, our legal colleagues at Allen & Overy have already staked their claim to BREXIT LAW!
A lot of this looks like bandwagon-jumping of the purest sort – get in quick and capitalise before someone else does. It also seems to reflect a general misunderstanding of what a trade mark is and what it can do (which makes it all the more curious that a major law firm is getting involved). For a start, a trade mark does NOT give you a monopoly over the use of a word, no matter how many press articles you may read to the contrary. Registering BREXIT would notentitle anyone to charge money for use of the word. What it might afford, to the extent that it were validly registered (and we enjoyed using that subjunctive too), is an exclusive right to use BREXIT as a brand in respect of certain specified goods and services.
Which is probably OK in terms of the beer – a nice pint of ‘Brexit’ bitter might go a long way to calm people’s concerns over recent developments. But would you really want to buy a ‘Brexit’ belt? Wear a ‘Brexit’ t-shirt? Or carry your phone in a ‘Brexit’ holder? What kind of message are you trying to convey? (And note the technical, but significant, distinction between an article which is branded BREXIT, and one – such as a t-shirt – which is merely decorated with the word.)
A trade mark’s role is to distinguish its proprietor’s good and services from those of competitors. To do this, it must be distinctive and therefore not descriptive, but it must first of all be recognisable as a trade mark which, in BREXIT’s case, is not actually a given. How many potential consumers, seeing the word affixed to something in a shop, would regard it as an indication of the good’s origin as opposed to a reference to current affairs? And even if they did make the conceptual leap to accepting it as a brand, could they be certain which origin it was indicating? Not in the sense of being in a position to specifically identify the business behind it, but being able to assume that it was who they thought it was?
An example: if we see a packet of breakfast cereal marked SHREDDED WHEAT, we’re on pretty safe ground to guess it’s made by the same people who sold us our last packet. We don’t need to know whether that’s Nabisco, or Nestlé or Cereal Partners or whoever; we just need to be able to assume continuity. That’s what a brand’s for. And that means we need to be able to interpret the brand as a brand and not as a label or a description – in the specific case of SHREDDED WHEAT, that means taking those two words to be a brand name and not a pithy description of what our breakfast’s made of and how it’s been processed. But SHREDDED WHEAT has over 100 years of solid commercial use behind it to help us understand all this; Brexit doesn’t.
Even after weeding out all the potential areas of overlap among the 23 wannabe trade marks, we might be left with several different registered proprietors all trying to trade under the same name. How is the consuming public supposed to pick its way through this confusing landscape? Given time, we might become educated to spot the differences – after all, we can buy POLO mints and POLO hatchbacks without getting too muddled – but that takes time and all this Brexiteering is probably too much too soon. We suspect none of these applications will enjoy a smooth passage to registration and will run aground either on ‘absolute’ objections (i.e. that they don’t even fulfil the role of a trade mark in the first place) or on ‘relative’ objections (that they’re confusingly similar to an already registered mark). Which is a shame because, despite our technical and political misgivings, we’re actually quite looking forward to being able to dunk a ‘Brexit’ biscuit in a cup of ‘Brexit Tea’ – both genuine applications.