I hope that I will be equally quick on this amendment, as there are points of more substance and principle to be debated later.
We discussed Amendment 3 in Committee. Essentially, it relates to a set of circumstances in which trademarks and GIs—geographical indications—may come into conflict and the circumstances in which the Secretary of State can make a decision that there would be confusion between the two. The point is that the GIs should be compared to existing trademarks and registered trademarks; to circumstances where, on the date which the GI is submitted, there are applications for the registration of trademarks; and, as the legislation refers to, where trademarks are “established by use”.
My problem is that nowhere in trademark legislation do the words “established by use” appear. My noble friend’s letter to me of 10 January said that “established by use” refers to unregistered trademarks. We appear to be putting into statute the concept that where a trademark has been used, it can be established but not registered, and I am not sure that that is helpful. What is more helpful would be to indicate that the Secretary of State should have a discretion to look at a GI that may come into conflict with an unregistered trademark—there are such things—and where confusion would result. My noble friend says that they may just use a trademark once, and the fact that it had been used once at some point in the past may lead to this confusion. As the legislation is drafted, the Secretary of State would actually have the discretion to judge these matters and to say whether confusion would arise. If a trademark has not been used prior to that date in any substantial way, I think the Secretary of State could ignore it and say that the GI has a meaning that people will readily understand.
I have a problem with the term “established by use” and think that “in use prior to that date” is more straight- forward and has the meaning we are looking for; “established by use” runs a risk of establishing that, in law, trademarks can be established by use. That is not something that the trademarks legislation currently admits of. I am not an expert in intellectual property matters, but I have talked to one or two who are, as we do in this place. I think there may be a problem with this, but I stand to be corrected by my noble friend. For the moment, I beg to move Amendment 3.