How does UK Law protect genuine products from copies?
There are various laws consisting of common law, statutes and directives that we can rely upon. This note looks very briefly at each of them and a summary of the protection they offer.
Trade Marks Act 1994:
Trade Marks Act 1994 is considered as the best protection available to the registered mark owner. Look-alike products are replica or very identical with the genuine marks and Section 10 (1), (2) & (3) of Trade Mark Act 1994 also provide protection from the identical marks used for identical goods and identical marks registered for similar goods and similar marks used for identical goods.
Law of Passing off:
Law of Passing off is a common law remedy against infringement and developed through case law. Its origin dates back to 1618. It was intended to prevent traders passing off themselves or their goods as those of another trader, to the effect that it causes them damage, and it could be well-suited to address look-alike because Firstly, not every type of branding qualifies for registration as a trade mark and secondly, no action may be brought by a mark owner under TMA 1994 prior to registration.
Copyright has the benefit of being an automatic right rather than a registration based system and it shelters the surface decoration of products but it provides no protection against those that copy the shape of the articles. It is also essential to demonstrate that the copying has been “substantial”, something that look-alikes evade when designing surface decoration.
Registered Designs Act 1949:
The external look of the entire or part of a product may be sheltered by an application for a registered design to the Patent Office. If the application for registration is successful then it creates a monopoly right lasting for an initial five years which may be extended by four five year terms up to a maximum of twenty five years. The Act has been amended by the Registered Designs Regulations 2001.
Unfair Commercial Practice Directives:
Where use of a sign is identical or similar to a trade mark and it took unfair advantage of its distinctive character or repute, that use could not be considered in accordance with honest commercial practices. Recital 14 of Directives states that: ‘It is not the intention of this Directive to reduce consumer choice by prohibiting the promotion of products which look similar to other products unless this similarity confuses consumers as to the commercial origin of the product and is therefore misleading.’