When is a Trademark not a Trademark?

There have been a few cases around the world this year which have highlighted the limits of trademark protection.

You can go to all the trouble of registering a trademark, but that does not mean you can protect it against "all comers".

In Singapore, the Court found that the use of a distinctive floral pattern with four pointed petals similar to the Louis Vutton trademark on the face of a watch was not using the pattern as a trademark, but merely decoration. 

The trademark 'Solvil' was written in small typeface on the watch faces and the watches were marketed at the bulk market, rather than an exclusive merchandise.

To be a trademark, the mark needs to be used in the promotion of the product.

Candy makers Nature's Blend and Nestle have had a similar tussle over the expression "Luscious Lips" used as a descriptive term on the advertising blurb of packet of Allen's Retro Party Mix (Nestle).

Allens Retro Party Mix LolliesNature's Blend held the trademark "Luscious Lips" for the class of products covering confectionery and claimed trademark infringement.  The Court said 'no'. 

The Court pointed out that if any customer actually took the time to read the blurb on the packet, it would only be after they were very clear as to which brand of sweets the customer was buying. (It is kind of obvious)

The mere presence of the words "luscious lips" in the blurb on the packet was insufficient to mislead customers in any way as to who was the maker of the product. So there was no breach of trademark.

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