Trade marks are property - treat them that way.

I see that Google is getting it in the neck again over trade marks. It seems it can't win - if it takes action to deal with trade mark infringers it is criticised as being over zealous and if it doesn't it is seen as being irresponsible.

I'm not going to add weight to any side of the argument here but it might help to explain a bit more about what trade marks are and what they do.

A trade mark can be literally anything that is capable of graphical representation and can be used to identify goods or services of a business. Their main function is to serve as a “badge of origin” enabling consumers to justify their purchasing decison.

Through them businesses distinguish themselves from their competitors and it has long been established that an owner of a distinctive mark should be able to have an effective monopoly in it in relation to his or her field of business.

In the UK and most other countries, brand owners may register their marks if they are distinctive and through this they get statutory rights to theoretically stop people from using the same or confusingly similar marks for the same or similar goods and services. Also if it is a very well known mark protection can exist to prevent its use on very different goods.

There is no similar statutory protection for an ‘un-registered’ trade mark but there is a legal right termed ‘passing off’. This is more difficult to establish but does give someone who can prove that they have reputation and goodwill in a name, mark or trading style (brand) the right to prevent others using it where it would otherwise cause consumers to be deceived and the brand owner damage.

There are of course exceptions, such as where the other party used its mark earlier, i.e. has a prior existing right or where the mark is devoid of distinctive character, such as egg for eggs or cake for cake. Also where it is a geographical location or a word that indicates the quality or intended purpose of the goods it is generally not accepted that people should have rights over the word.

However "egg" for financial services of "cake" for PR is distinctive and this is where much of the argument arises in relation to online business.

"Orange" is a brand. It is also a colour. Should anyone be able to stop someone using teh word "orange"? No - unless that person is doing it to try and get customers off the telecoms company.

So how does anyone know without looking into what they are doing?

It is left to the brand owner to do so and not to rely on others to do it for them.

Trade marks and brands are property like any other and that means their owners have to look after them as they would any other piece of property. That means protecting it as you would your house. If someone is damaging it you should try to stop them and fix the damage.

It's a difficult and sometimes expensive process but it is necessary and involves some effort.

Over the next few weeks I hope to give a few examples of what can be done and what is being done to help look after this and other intellectual property.

Cheers for now.