Should they have?
There has been some coverage in the media recently about Specsavers’ application to register the mark SHOULD’VE – details here.
Most people in the UK would recognise the strap line SHOULD’VE GONE TO SPECSAVERS as part of a marketing campaign by the High Street opticians. But SHOULD’VE on its own as a trade mark has now been accepted and published so that others can oppose registration.
Strap lines can be registered as trade marks, provided that they meet all the usual requirements for registration, in particular, that they are distinctive and that they are not descriptive. Most strap lines are used for marketing or promotion purposes to give a message to the consumer about the product. They are, more often than not, descriptive of a characteristic or quality of the goods and services and so are typically more difficult to register, if indeed they can be registered at all.
Marks can acquire distinctiveness through use – by using the mark the consumer is educated to connect the mark with the product, and to expect that all such products which bear the mark come from the same source, even if they don’t know what that source is. This is the route usually taken to get a strap line registered.
Nestle has registered HAVE A BREAK as a trade mark for its KITKAT confectionary. It took several attempts over several years to do so, but the powers that be were eventually persuaded, based on evidence submitted, that consumers make the connection between HAVE A BREAK and the KITKAT bar without the need to include the word KITKAT.
What do you think? Does SHOULD’VE function as a trade mark on its own and without the context of the SPECSAVERS business? If they do get it registered they will be in a position to prevent the use or registration of the same or similar marks for the same or similar goods/services for which it is registered. If they can prove that the mark SHOULD’VE has a reputation, their rights will extend to all goods/services where a third party uses the same or a similar mark in a way which takes unfair advantage of its reputation or is detrimental to it.
Trade mark registration can be a very powerful tool. If you would like more information or are interested in registering a trade mark please contact me on the link below.
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