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Phillips, Jeremy --- "Introduction: Permitted But Unauthorised Use" [2006] ELECD 228; in Phillips, Jeremy (ed), "Trade Marks at the Limit" (Edward Elgar Publishing, 2006)

Book Title: Trade Marks at the Limit

Editor(s): Phillips, Jeremy

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845427382

Section Title: Introduction: Permitted But Unauthorised Use

Author(s): Phillips, Jeremy

Number of pages: 4

Extract:

Introduction: Permitted but unauthorised
use
Jeremy Phillips

WHAT IS MEANT BY `PERMITTED BUT
UNAUTHORISED USE'?
Trade mark law confers upon the proprietor of a registered trade mark a very
wide power over other traders who use his trade mark. Put simply, if that use
is without the proprietor's permission, the proprietor has the power to prohibit
it by bringing a legal action against the user for infringement. If however that
use is with the proprietor's permission, he may make that use conditional upon
such terms as he seeks to impose.
The reality is less simple. This is because there is a category of use that the
trade mark owner is powerless to prevent: use which, while lacking the propri-
etor's authorisation, is nonetheless permitted by the law. More accurately,
there are several different categories of use that the law tolerates, whatever the
feelings of the trade mark owner. Some of these uses are based on commercial
imperatives, such as a retailer's need to be able to inform consumers about the
goods he sells; others are based on political imperatives, such as the exercise
of the human right of freedom of speech; others again are based on consider-
ations of honesty or fairness, such as where a trader seeks to trade under his
own name even though that name is the same as, or similar to, an earlier regis-
tered trade mark.


STRIKING A BALANCE
In each of the instances in which the law permits the use ...