Model Answer [Outline]

Based on the literal construction of section 3(1), it can be concluded that a trade mark consist of the relevant elements:

a)     A mark;

b)     Used or proposed to be used in relation to goods and services; and

c)     An indication of a connection between the goods and the proprietor of the goods, either as an indication of origin or an indication of quality.

Therefore the scope of the discussion as well as the accompanying decided cases will be confined to the above elements.

Under element (a) that a trade mark consist of a mark, there are several important principles that need to be taken into account. Firstly, what constitute a mark? The answer to this question may be found in the following case:

i.      Smith, Kline & French [1976] RPC 511.

ii.     Coca-cola [1987] RPC 245.

iii.    Reddaway’s Application [1927] 44 RPC 27.

iv.    Blue Paraffin T.M [1977] RPC 473.

[Each of the aforementioned cases will be discussed in the full model answer]

The second principles in concerning the visibility of trade mark. Reference may be made to:

  I.    Section 3(2)(a).

 II.    Unic S.A v Lyndeau Products Ld (“Everglide” trademark) [1964] RPC 37.  

Under element (b) that used or proposed to be used in relation to goods and services, reference may be made to:

  I.      Section 3(2)(b).

 II.      Section 3(2)(c).

Under the final element (c) that “indication of connection” and “connection in the course of trade”, the following cases may be relevant:

      I.  indication of connection

i.      Bass v Nicholson [1932] 49 RPC 88.

     II.  connection in the course of trade

i.      Hospital World [1967] FSR 27.

ii.     Aristoc v Rysta [1943] 60 RPC 45.

iii.    “Revue” T.M [1979] RPC 27.

iv.    “Unilever” (Striped toothpaste)[1980] FSR 280.