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Free Law Essay: UK Trademark Law and Fashion Brands

Essay Topic: ,

Does UK Trademark law offer enough protection for Fashion Brands?

Introduction

Alligator and Crocodile[1]. A crocodile which faces left and a crocodile which faces right[2]. “Criminal” and “Criminal Damage”[3].

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Two bounding felines[4]. “Amaze Collection” and “Ama Zing”[5]. “The Gunners” and “Arsenal Gunners”[6]. By such finely nuanced words and concepts the battleground of Trade Marks in the fashion industry is defined. The need to protect products stems from the industrial revolution[7] and has been swept along by the current of modern capitalism which has seen the field of Trade Mark registration encroach into almost every field of human industry covering sounds, smells and even 3-dimensional images.

Fashion brands are often pitched at the centre of this ongoing struggle between competing companies, multinationals and street vendors alike, and individuals: the international counterfeiting fashion industry was reported in 2005 to be worth ˆ500 billion and can justifiably be said to be undermining the protection which UK Trademark law offers by flooding markets with cheap counterfeit goods which are in one sense undetectable by the law[8]. Are fashion brands right to think that Trade Mark law cannot keep up and take the law into their own hands[9]The counterfeiting industry is, however, the extreme end of Trade Mark violation: what of two retailers who genuinely believe they are selling a unique and distinct product, one of which is already registeredThe distinction here is sometimes extremely subtle and this dissertation will articulate these nuanced positions. The regulatory regime in the UK does provide a measure of protection to brands, but it is wise to recount Lewison J’s observations:

“English law does not, however, protect brands as such. It will protect good will (via the law of passing off); trade marks (via trade mark infringement); the use of particular words, sounds and images (via the law of copyright); and configurations of articles (via the law of unregistered design right) and so on. But to the extent that a brand is greater than the sum of the parts that English law will protect; it is defenceless against the chill wind of competition”[10].

Within the context of Lewison J’s definition there are two distinct areas of protection in the modern law of Trade Mark in the UK: the common law action of passing-off in tort and the registration regime under the Trade Mark Act 1994 which both enable the protection and enforcement of rights. This Project will address the application of both of these aspects of Trade Mark law in the UK specifically to the fashion industry. This aspect of trade mark law is a neglected one and a field which deserves closer scrutiny given that the fashion industry contributes ?21 billion to the British economy[11]as well as ethical, creative and market justifications for protection[12]. One traditional view of research, adopted by the Harvard School and articulated by Pickering[13] in this field is that the protection afforded to brands effectively creates a monopoly to the detriment of the customer[14]. A recent landmark case from 2010, however, which marked the end of a 4-year legal battle, has ended in victory for a small clothing retailer against an international company, La Chemise Lacoste[15]. This decision can be directly contrasted with the 40-year legal siege which finally came to an end in 2008 between La Chemise Lacoste v Crocodile International Pte Ltd[16] and recent Lacoste trademark rulings in China.

This project will argue, in light of both recent developments in China and Australia regarding Lacoste and the Chemise Lacoste case itself in the UK, that the UK Trade Mark regime does provide sufficient protection both at common law and at a statutory level from the smallest street vendors to the largest Multi National Corporations and that anti-competitive arguments against trade marks are becoming less relevant: if David can beat Goliath in the landmark fashion law case of the 21st century so far, then surely the law is fulfilling its roleThe role of passing-off however, is clearly diminishing as the statutory framework grows and it is possible that when there are no holes left in the Trade Mark Act 1994 this tort will not have a role[17].

This project will use statute, textbooks, journals and newspaper articles to address the hypothesis that UK trademark law is sufficient enough for the protection of internal disputes but inadequate to deal with the blight of sophisticated international counterfeit operations. The breadth of the scholarship and sources used will be complemented by recent case law to bring the research into 2011. Such a research project can later form the basis for further research and study in the field and can be drawn upon in the future for further development and study.

Literature Review

The Development of Trade Mark Law

Cornish and Lleweleyn[18] trace the history of Trade Mark law and note that in 1875 a campaign for a registration system succeeded in the historic Trade Marks Registration Act 1875. Pickering[19], Bently and Sherman[20], Torremans[21] and Bainbridge[22] all note the development with Pickering noting that: “the advantages of protection by this method are clear: it is no longer necessary to go through the costly and laborious process of proving that a mark has an acquired reputation connected with the plaintiff”[23]. The 1905 Act saw certain advancements upon the advent of registration in 1875, notably making non-use for the previous five years a ground for the mark being removed from the Register, something which is preserved under the Trade Mark Act 1994 s.46(1)(b).

Cornish and Llewelyn also observe that the inter-war years saw an increase in the commercial significance of trade marks by “the spread of production, the growth of a popular press with is immense prospects for advertising, the increase of transnational business in successful products and the consequent need to shield high-priced markets against parallel imports from elsewhere”[24]. There were Acts in 1883, 1905 and 1919 but the key Act, foreshadowing the current regime, was the 1938 Trade Marks Act. This Act, as Bently and Sherman note, allowed the assignment of marks separate from the good will of the business. The criteria for registration under this Act has been widely criticised as being too complex and unduly restrictive[25], plagued by obscure drafting[26] and unclear over the consequences for non-registration[27]. Several amending acts were subsequently passed in the UK but these only added to the difficulties in the interpretation of the 1938 Act. The 1984 Trade Marks (Amendment) Act which tried to incorporate service marks into the regime was “clumsy” according to Bainbridge and Torremans[28].

External pressures overtook the 1938 Act and its amendments and soon the case for a regime more in line with European countries was irresistible. Indeed, the EC directive on the harmonisation of trade mark law has been hailed as the single largest driving force behind the 1994 Act[29]. Frank Schechter, the leading historian of trade marks, is also seen as a precursor to the 1994 Act. He argued, radically at the time, for a single rational basis for trade marks and, such marks being a species of property which necessarily protects both similar and dissimilar marks, the only reason for protection is preservation of the unique nature of the mark[30].

The modern regime is enshrined in the 1994 Trade Mark Act which, in the words of Bainbridge: “brought a welcome breath of fresh air to trade mark law…Gone is the obscure drafting of the 1938 Act.”[31] Under the 1994 Act the significant changes were that the criteria for registration were relaxed and broadened, the scope of protection for registration was enlarged and the previous formalities eradicated. Such formalities were for so long a barrier to transnational businesses who, in the words of Cornish and Llewelyn, “want simple, certain and cheap registration without having to apply country by country using systems encrusted with individual idiosyncracies”[32].

Trade Mark for fashion brands: an exposition of relevant case law (1) passing off cases

The earliest case which incorporates both fashion and Trade Mark law is Southern v How[33], a case from 1618 which involved two clothes makers, one putting the others mark on his inferior product and thus giving rise to a common law action in deceit. The modern common law tort of passing off is quite different, being comprised of three elements as advocated by contemporary opinion: “that confusion being generated by the activity of a trader in causing his goods or services and/or their presentation to become confused with those of the claimant, and that protection being afforded by the grant of a right of action to the trader whose economic interests and trading goodwill are harmed by the confusion”[34].

The first significant fashion case under passing off comes in 1988 in Unidoor v Marks & Spencer [35] where M&S were marketing t-shirts with the slogan “COAST TO COAST” underneath the words “Marine girl”. The plaintiffs in this action had a part B trademark for “Coast to Coast” and complained of the defendants’ use while the defendants challenged the validity of the plaintiff’s trade mark. The High Court of Justiciary, Chancery division, held that both under statute and the common law tort of passing off there was no case as the plaintiff had not acquainted the purchasing public with the fact that “Coast to Coast” was a trademark of theirs. In AMAZE Collection Trade Mark[36] the distinction was a fine one between “Amaze Collection” and “Ama Zing”, the plaintiffs owning the latter and the defenders owning the former. The plaintiffs applied for a declaration of invalidity under s.5(4)(a) using passing off as a former right to rely upon. The court refused the application, holding that A had failed to establish he had owned the relevant goodwill in the company before the relevant date and in any event held that the words wouldn’t create any confusion in the minds of the public.

In Criminal Clothing Ltd’s Trade Mark Application[37] the words involved were “Criminal” and “Criminal Damage”. This case concerned an appeal by a clothing manufacturer (C) who sought to challenge the decision of the Trade Marks Registry to uphold a decision supporting M which prevented from registering a trade mark. M had opposed C’s mark as confusingly similar and for identical goods, and had claimed that because of the goodwill and reputation enjoyed by M, use of C’s mark would amount to the tort of passing off. The appeal in relation to s.5(4)(a) failed as there was an acute risk of confusion according to the Chancery Division.

The final case I have selected for analysis is a very recent one: Zaba’ish v Zebaish Clothing Ltd[38] where a company using the same name as another company to sell the same goods with a lower quality was guilty of passing off because the deceptive similarity of their names was likely to damage the goodwill of the earlier company. Judge Fysh QC put the test in the following way:

“A claimant alleging passing off had first to prove a reputation or goodwill in association with a particular word or mark associated with its business; secondly, a misrepresentation of some sort in the course of trade on the part of the defendant had then to be shown; finally, that misrepresentation had to be calculated or, at least, likely to damage the claimant’s goodwill or business.”

Case Law relating to Trade Mark protection in the fashion industry under TA 1994: s.5 relative grounds of refusal

As noted above the recent case of Chemise Lacoste and Baker Street Clothing

Ltd[39] has heralded a significant victory for a very small clothing manufacturer against the giant Lacoste under the Trade Mark Act 1994. A predecessor to the Lacoste legal wrangles under s.5 of the 1994 Act (the relative grounds of refusal) is firstly the ZIPPO Trade Mark[40] case where P registered the trademark in class 18 in respect of items of fashion. A had three prior registrations for an identical named mark for lighters. A thus applied for a declaration of invalidity on the grounds that P’s mark was identical to theirs and this could lead to confusion under s.5(2). A also tried revocation on the grounds of non-use under s.46 for 5 years. The Trade Marks Registry held that the challenge of invalidity failed under s.5(2) as A had not challenged the registration of the trade mark in 1986 and secondly the s.46 revocation failed to an extent as the trunks, umbrellas and parasols had not been in use while the bags, cases and wallets had been despite the very minimal amount of use.

The LOADED Trade Mark case[41] also came under s.5 in respect of the proprietor of a magazine called LOADED who appealed against the dismissal of their application opposing the registration of an identical trademark in respect of clothing. IPC contended that the application should be refused inter alia under s.5(3): damage to their reputation. The appeal was allowed as LOADED had built up significant reputation in the men’s magazine sector and dilution of the market as had happened could compromise advertising revenues.

In Baker Street Clothing Ltd v La Chemise Lacoste (SA) Trade Mark Registry 9/12/2009, Lacoste tried to revocate the registration of Baker Street’s alligator mark under s.46(1)(b) and succeeded in part. The court observed that the minimal use of certain products qualified them to escape revocation but others did not: “Therefore, the evidence collectively established that in 2005 B was making preparations to secure customers and create a market share for its clothing and that that should be considered to satisfy the requirements for there to be genuine use.”

This case proved only a stepping stone to the landmark decision in November 2010[42] where Baker Street finally won over their multinational rival. Sections 5(2)(b), 5(3), 5(4)(a) and 56 of the Trade Marks Act 1994 were invoked by Lacoste to oppose the applications to register ALLIGATOR as a Trade Mark.

The Registry significantly pointed out at paragraph 50 that:

“The Applicant’s word mark ALLIGATOR would naturally be perceived

and remembered as an allusion to alligators in general. Pairing and matching it with the particular images of the Respondent’s marks, in circumstances where they had come to be firmly associated and identified with the name LACOSTE, looks to me like a process of analysis and approximation that the relevant average consumer would not naturally be concerned to engage in.”

The fashion industry: counterfeiting and attitudes to Trade Mark law

Okonkwo has observed that major brands such as Burberry and Louis Vuitton consider the fight to protect their Trade Marks against counterfeiters a losing battle and are instead focusing on preventing supply in raiding stores and factories across the world[43]. Chaudry meanwhile, echoes Okonkwo’s findings and develops the idea of three central distribution areas which evade law and customs: “established retail shops, informal channels such as “flea markets”, sidewalk vendors and clandestine shops and of course the internet”[44]. These informal locations are very much evident in the back streets of the UK and their seepage into the pores of UK commerce is evident[45] as is their dilution of the market[46]

Of course the market in counterfeit goods would not exist if there wasn’t a demand for it[47] and Okonkwo in particular identifies study of consumers in the UK which revealed that about a third of the public would knowingly buy counterfeit goods for a variety of reasons. Phillips[48] describes the exceptionally tough stance of the French who put counterfeiters in jail for 3 years with a possible fine of 300,000 euros.

Explanation of the legal position

S.1(1) of the Trade Marks Act 1994 provides that a trade mark is any sign which is capable of being represented graphically. This representation distinguishes the goods or services from other undertakings. The crucial point here is that once registered, the trade mark represents a property right which is vested in the owner. Given this two tier level of protection the legal position will be analyzed in relation to pre and post – registration.

When the mark has been registered or is in the process of being registered:

For a trade mark to be registered, it must not fall into the grounds of refusal of registration. Under s.3 of the 1994 Act, they are firstly that the Trade Mark must have a descriptive character, it must not be descriptive of the underlying goods or services which it represents and it must not represent a customary articulation of the trade. Registration will also be refused if it is contrary to public policy or accepted levels of morality (eg being deceptive in nature).

S.5 of the 1994 Act provides additional relative grounds of refusal in addition to s.3:

5. – (1) A trade mark shall not be registered if it is identical with an earlier trade mark and the goods or services for which the trade mark is applied for are identical with the goods or services for which the earlier trade mark is protected.

So if a trade mark is identical to an earlier trade mark and the trade mark applied for is for goods either identical to or similar to those for which the earlier trade mark has been registered and there exists a likelihood of public confusion then registration can be refused. The third part under s.5(3) concerns the unfair advantage or detriment caused to the “distinctive character” of the earlier trade mark and finally s.5(4) incorporates the law of passing-off by providing that a trade mark will be refused registration if in the UK there is any rule of law which prevents its use. When the mark has already been registered then s.10 of the 1994 Act is applicable:

10. – (1) A person infringes a registered trade mark if he uses in the course of trade a sign which is identical with the trade mark in relation to goods or services which are identical with those for which it is registered.

This part of the Act is similar in its wording to s.5 but not identical in that the mark itself can either be similar or identical to the earlier trade mark in question but clearly, as Torremans points out, it is written “in accord with section 5 of the Act”[49]. Torremans distils this section into a three point test: firstly is the sign used in the course of tradeSecondly are the goods and services for which the sign is used similar to those in relation to which the trade mark has been registeredAnd finally is there a likelihood of confusion because of that similarityIt should be noted finally that under s.42(1) a Trade Mark initially lasts for 10 years but through the grounds of s.46(1) if there is, for example, non-use for five years there is a ground for revocation.

When the mark has not been registered

Then the Trade Mark Act 1994 cannot apply and the common law must fill in where the statute cannot. Different formulations of this action have evolved over time but it is the rule laid down by Lord Diplock which according to Bainbridge, is the one that is closest to the present legal environment[50]. Lord Diplock, from the case of Spalding & Bros v A W Gamage Ltd[51] , laid down a classic formulae which has been further distilled into a three-part test by Nourse LJ[52]:

The goodwill of the claimant
The misrepresentation made by the defendant and
Consequential damage

The central element of the common law action of passing-off is the goodwill element: without this there can be no action. Clearly, as Bainbridge points out, “if a trader has only just started in business or has only recently started using an unregistered mark or ‘get up’ he may be unable to succeed in a passing off action[53]. The central question here is whether a reputation has been acquired, regardless of the shortness of time. Regarding misrepresentation this need not be malicious as innocent misrepresentation may be enough. Finally the damage element relates to confusion in the public.

Remedies at common law and under the 1994 Act

At common law the remedies available are:

injunctions (including interim) and/or
Damages and/or
Account of profits
Declarator or order to destroy the offending marks[54]

Under the 1994 Act the remedies are contained under s.14:

Damages
Interdict
Count and reckoning
Order under s.15 to to erase, remove or obliterate the offending sign
Order under s.16 for the offending material to be sent to the correct trade mark owner[55]

Analysis and/or evaluation of the particular issue. [500]

UK trade mark law offers no more than adequate protection for fashion brands. As has been discussed if the trade mark of the fashion brand is registered then the full suite of rights and remedies is available under the Trade Mark Act 1994. There can be no better demonstration of the powerful protection which UK companies can claim than in the very recent La Chemise Lacoste[56] which demonstrates aptly the power of the UK system in overturning the Harvard School of thought which criticizes protection of trade mark as a form of monopoly. Although the exact consequences of this case are unclear, they can be contrasted with other Lacoste cases in both China and Australia where Lacoste was successful in preventing Crocodile International from registering further trade marks into the market. Protecting smaller retailers and larger companies alike can only enhance the credibility of the UK system when two brands have an arguable case.

Case law in fashion brands and trade mark has been conducted in both the common law of passing-off and the statutory regime. It is clear that fashion brands have been using protecting their rights at both the pre and post- registration stages of a trade mark. Where the offenders are blatant counterfeiters however, it is less clear how the global plague of counterfeit goods can realistically be stopped. The seeping into markets of hordes of goods from China has diluted our economy and damaged the reputation of trade mark law: such sales on street corners, “flea markets” and clandestine shops undermine the regulatory regime and have witnessed major brands such as Burberry effectively take the law into their own hands. If they are turning their backs on trade mark law then there needs to be a serious re-examination of the strictness of anti-counterfeit laws and perhaps a more mobile type of justice which can move with the cunning criminal minds which engineer the system.

Internally the trade mark system is working in the UK if the trade mark is registered. The level of ignorance about trade marks is high though and it is this state of limbo, along with the streams of counterfeit goods which penetrate the UK which render the protections of trade mark law as inadequate. A lack of awareness of the full suite of protections under the Trade Marks Act 1994 is an indictment of the system The range of remedies is very similar between the common law and statutory regimes, however, and can be said to offer a good measure of protection once it is proven that a trade mark infringement has occurred.

An unregistered trade mark can be a toxic asset as the hard work and labor which has gone into its production can be undermined easily if for example confusion to the general public cannot be evidenced.

Critical reflection

Looking back on this dissertation I would have liked to have conducted more research into primary case law. The question itself is quite specific and the case law on intellectual property as a whole is undoubtedly vast and suffers from over-analysis. If I had more time I would have liked to have obtained case law on the full range of the 1994 Act. In this study I have only been able to find case law relating to fashion brands in respect of the relative grounds of refusal under s.5 and also the revocation regime after 5 years of non-use.

Furthermore, the opinions of those in the fashion world would have been very revealing. Despite all the speculation of case law it is difficult to perceive how those who manufacture and market the brands view their legal rights: do they make use of trade mark lawDo they feel it protects themDo they feel that they have to take the law into their own handsSome quantitative research in this direction would illuminate the study and could inform a future piece of work.

Conclusion

In conclusion the protection of the Trade Mark laws, both at common law and the statutory regime under the 1994 Act, is adequate for companies and individuals based in Britain but inadequate when faced with the flood of counterfeit goods from countries such as China. Clearly a registered trade mark which has built up a reputation can expect excellent protection but not to the extent of a monopoly as evidenced by the recent La Chemise Lacoste case. Ignorance of the law of trade mark, the attitudes of brand manufacturers in taking the law into their own hands and searching properties and persons and the fading relevance of the common law action of passing-off all rein in the protective level of the Trade Mark Laws. Both pre and post- registration fashion brands have enjoyed the protection of the law but in this age of globalization of commerce the dangers of cheap goods bought by an often complicit public is ever present.

My Recommendations:

(1) Education: The general public and indeed companies need to be made aware of the benefits of trade mark law and the possible effects of not having trade mark law (for example Pakistan pharmaceuticals and lowest denominator). The range of things which can attract a trade mark, such as sounds, smells and even 3D images are simply outside the knowledge of those outside the specialized IP profession.

(2) Counterfeit penalties: The French have a highly refined sense of culture and also a highly developed set of punitive measures: 3 years in prison and 300,000 euro fines act as powerful deterrents.

(3) Development of the common law action of passing-off into a more embracing form which incorporates criminal offences such as under the Forgery and Counterfeiting Act 1981 s.1.

(4) Further research into this area along the lines of America – who have specialist books in this area unlike the UK where the subject is simply one which has not been considered in any detail.

References

[1] Baker Street Clothing Ltd v La Chemise Lacoste (SA) Trade Mark Registry 9/12/2009

[2] La Chemise Lacoste v Crocodile International Pte Ltd [2008] ATMO 90

[3] Criminal Clothing Ltd’s Trade Mark Application (No. 229214) [2005] EWCH 1303 (ch)

[4] Sabel BV v Puma AG (C-251/95)

[5] AMAZE Collection Trade Mark [1999] R.P.C. 725

[6] Arsenal v Reed (no.1) [2001] 2 C.M.L.R 23

[7] Cornish W & Llewellyn D (2007) Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights p.606

[8] Okonkwo, Uche (2007) Luxury Fashion Branding: Trends, Tactics, Techniques p. 173

[9] Ibid p. 174

[10] O2 V Hutchison [2006] E.T.M.R. 677 at para 7

[11] http://www.guardian.co.uk/lifeandstyle/2010/sep/15/british-fashion-industry-report-business

[12] Bently & Sherman (2004) Intellectual Property Law p.699 – 702

[13] Pickering, C.D.G (1998) Trade Marks in Theory and Practice p.74

[14] Yelnik, Sasha ‘From the point of view of commercial value of trade marks, do current laws sufficiently protect brands from infringement?” European IP law (fix)

[15] In the matter of applications 2338089 and 2354259 in the name of Baker Street Clothing Limited and oppositions 94205 and 94206 by La Chemise Lacoste SA (BL 0-333-10, September 16 2010)

[16] [2008] ATMO 90

[17] See Hollyoak & Torremans (2005) Intellectual Property Law 4th ed

[18] Cornish W & Llewellyn D Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights p.606

[19] Pickering, C.D.G (1998) Trade Marks in Theory and Practice p.3

[20] Bently & Sherman (2004) Intellectual Property Law p.699 – 702

[21] Hollyoak & Torremans (2005) Intellectual Property Law p.364

[22] Bainbridge, David (2002) Intellectual Property p.534

[23] ibid p.3

[24] Ibid p.610

[25] Bently & Sherman (2004) Intellectual Property Law p.696

[26] Bainbridge, David (2002) Intellectual Property p.549

[27] Cornish W & Llewellyn D Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights p.606

[28] Hollyoak & Torremans (2005) Intellectual Property Law p.364

[29] See Pickering, C.D.G (1998) Trade Marks in Theory and Practice p.5, Cornish W & Llewellyn D Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights p.611, Bainbridge, David (2002) Intellectual Property p.549, Phillips & Firth (2001) Introduction to Intellectual Property Law 308

[30] F.Schechter ‘The Rational Basis of Trade Market Protection’ (1927) 49 Harvard LR 813, 831

[31] Bainbridge, David (2002) Intellectual Property p.549

[32] Cornish W & Llewellyn D Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights p.611

[33] (1618) Popham 144

[34] Hollyoak & Torremans (2005) Intellectual Property Law p.448 And also see Pickering, C.D.G (1998) Trade Marks in Theory and Practice p.5, Cornish W & Llewellyn D Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights para 17-01, Bainbridge, David (2002) Intellectual Property p.640, Phillips & Firth (2001) Introduction to Intellectual Property Law 308

[35] [1988] R.P.C. 275

[36] [1999] R.P.C. 725

[37] (No. 229214) [2005] EWCH 1303 (ch)

[38] Patents County Court [no reference]

[39] Baker Street Clothing Ltd v La Chemise Lacoste (SA) Trade Mark Registry 9/12/2009

[40] [1999] R.P.C. 173

[41] (2001) 24(2) I.P.D 24012

[42] In the matter of applications 2338089 and 2354259 in the name of Baker Street Clothing Limited and oppositions 94205 and 94206 by La Chemise Lacoste SA (BL 0-333-10, September 16 2010)

[43] Okonkwo, Uche (2007) Luxury Fashion Branding: Trends, Tactics, Techniques p. 173

[44] Chaudry & Zimmerman The Economics of Counterfeit Trade p.22

[45] http://news.bbc.co.uk/1/hi/england/london/8576880.stm

[46] Hines & Bruce Fashion Marketing: Contemporary Issues p.148

[47] Okonkwo, Uche (2007) Luxury Fashion Branding: Trends, Tactics, Techniques p. 173

[48] Philips, Tim (2007) Knockoff: The Deadly Trade in Counterfeit Goods p. 9

[49] Hollyoak & Torremans (2005) Intellectual Property Law p.398

[50] Bainbridge, David (2002) Intellectual Property p.549

[51] (1915) 84 LJ Ch 449

[52] Consorzio de Prosciutto di Parma v Marks and Spencer plc [1991] R.P.C. 351

[53] Bainbridge, David (2002) Intellectual Property p.644

[54] Bainbridge, David (2002) Intellectual Property p.679

[55] Ibid p.620

[56] In the matter of applications 2338089 and 2354259 in the name of Baker Street Clothing Limited and oppositions 94205 and 94206 by La Chemise Lacoste SA (BL 0-333-10, September 16 2010)

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