As always, I thank my noble friend Lord Lansley and all contributors to the debate on this amendment. It is very relevant, in my view; however, I am comfortable keeping the words “established by use” in the Bill as printed, rather than using
“in use prior to that date”.
My reason is simple and was pointed out by my noble friend: a single use of a name could be construed as giving the same protections as a trademark which, through an effective accumulation of good will and the establishment of its use, has been protected under these laws. We are quite comfortable with the wording.
I am aware that there is no reference to the concept of “established by use” in the Trade Marks Act 1994— I am surprised that there is no lawyer in this House jumping up to support me at this crucial moment, just when I need one. They seem not to be in their usual places but they would say, were they here, that this is
an extremely well-established part of trademarks law. As I understand it—I am comfortable to be corrected, but my officials assure me of this—elsewhere, in the amended legislation relating to unregistered trademarks, is the common-law tort of passing off, which relates to good will. I am also reassured that in GI legislation—for example, Article 14(2) of the assimilated regulation 1151/ 2012—the concept of “established by use” is written and codified.
From our point of view, it is important to ensure that we protect our trademarks and that we use geographical indicators where appropriate. I will come on to the point raised by the noble Lord, Lord McNicol, in a moment. Having spent a great deal of time working on this, I ask my noble friend to withdraw his amendment because I do not believe that by changing the phraseology we will give the greater protection that we want to our trademark-using organisations, businesses and people, and allow the system to function effectively. I am very convinced of that. We have a line in our next amendment that will allow us to discuss geographical indicators in slightly more detail, so I will cover the points raised by the noble Lord, Lord McNicol, at that point if he is content with that.
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