Businesses fight bitter battles to protect their brands. As you read this, for example, Peter Brownlow, of the leading intellectual property experts Bird & Bird, is acting for the Rugby Football Union and the England team over a piece of ambush advertising that appeared in a magazine during the World Cup.

But, whoever wins the rugby competition in France, UK enterprise yesterday lost one of its traditional defences against potential rip-off. In a nutshell, the UK Intellectual Property Office, which has the responsibility for registering patents and trademarks, will no longer refuse a new trademark application on the ground that it might pose a commercial conflict with an existing trademark. Instead, the UK IPO will examine UK trademarks on the basis of “absolute” grounds only. This assesses whether they are distinctive and fitting for a trademark (so that, for example, a company cannot be allowed to trademark the name “soap” for soap) but will not delve into whether there is an overlap with someone else’s trademark. The responsibility for that, Brownlow explains, lies with the existing owners.

For some intellectual property lawyers, this move represents a profound dilution of the traditional strength and credibility of the UK trademark system. Simon Smith, of Blake Lapthorn Tarlo Lyons, says: “I feel very strongly about the changes. It’s a shame and I’m really troubled by them. In the past a UK trademark was a designation of origin and was a form of consumer protection. Now, though, it has been reduced to little more than a piece of commercial property. It undermines the presumption of strength and validity of the UK trademark and that is going in the wrong direction.”

But it is not only consumers who need to be concerned. Even more so, maybe, should be established brand owners. Daniel Alexander, QC, of the Chancery Bar Association, explains: “From [now on] trademark owners who want to prevent someone else from registering a similar mark will have to take active steps to oppose registration. They won’t be able to rely on the registry to do the job for them.”

Mike Lynd, of the trademark attorney Marks & Clerk, agrees that the changes mean that businesses will need to be more vigilant and more proactive to prevent new and similar trademarks being registered in the UK. “Although existing UK trademark holders will be warned of a new trademark application – which will give them time to lodge an opposition – it is not yet clear how thorough this service will be,” he says.

According to some lawyers, however, the “writing has been on the wall for some time” about the demise of the copper-bottomed UK trademark. There is now, effectively competition for registrations among the various national and international intellectual property offices. In particular, the introduction of the Community Trade Mark that prevails across all European Union member states gave businesses coverage across more than 25 territories at one stroke. However, investigations by the authorities into the validity of the mark took account only of its capability of being registered. There was no “relative” examination (that is, cross-checking for conflict). And once that precedent had been set it was always going to be difficult for the UK to adhere to its traditional approach.

According to Sarah Wright, of Olswang, there was no way that the Community Trade Mark registration process could have included the “relative examination”. “Europe is just too big to make this workable,” she says. “To remain competitive the UK IPO almost had to follow suit.” And as Lynd observes, there was also a view among some of the trademark bodies wondering “why should we be doing the trademark owners’ work for them?”

Some businesses will believe that the slimmed-down service is a significant advance – at least in the short term. “Overall, it should speed up the process of trademark registration,” says Alexander, although the silk adds that it may lead to more disputes.

Wright points out that the new approach will start to loosen up clogging. “There are lots of ‘dead’ trademarks out there that are not being used and unless they expire, the only way to remove them is to seek revocation. Under the current system, these marks could block a new trademark. The reforms will help to free up the system.”

By and large the bigger businesses will be able to cope with the changes by employing watching services to check up on the weekly TM Journal that lists all the new applications. However, smaller and medium-sized businesses may suffer by lacking the resources to remain vigilant against possible threats.

Moreover, we are only just at the start of a bigger challenge to work out how trademarks can be protected on the internet. The grey areas of law are considerable and all the signs are that the more important trademarks become, the more owners will have to take action to protect them.

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