Some post-festive fun from the UK Trade Mark Registry concerning an application to register the term MERRY CHRISTMAS for various household goods.
Procter & Gamble applied to register MERRY CHRISTMAS as a UK trade mark for various household goods such as cleaning agents, air-freshening equipment and kitchen utensils in Classes 3, 5, 11 and 21. Objection was taken since the mark was said to be devoid of distinctive character and therefore barred from registration under s.3(1)(b) of the Trade Marks Act 1994. P&G argued that the mark was distinctive since the goods at issue were functional rather than decorative and it would be inappropriate to use the term as a greeting on these goods. The hearing officer however concluded that the mark was not registrable because it lacked distinctiveness.
The obvious message given by the term MERRY CHRISTMAS was that of conveying seasonal greetings. This was the case whether the term was used on the packing of goods or in advertising. It could be used could be used on the packaging of a wide variety of goods, including the goods covered by the application, to promote the sales of the goods during the Christmas period or to indicate that the goods are for use during the Christmas period. This obvious primary meaning meant that it was unlikely that consumers would see the MERRY CHRISTMAS mark as denoting trade origin since it would merely be seen as a seasonal greeting.
In order for the MERRY CHRISTMAS sign to be viewed as a trade mark, it would be necessary to educate consumers to perceive it as denoting the origin of the goods on which it was to be used. Thus the mark was devoid of distinctive character under s.3(1)(b).
The IPKat says that if ever there was a case demonstrating that certain marks need to be kept free for other traders to use then this is it. If the mark had been registered then this would give one trader extraordinary power over the term MERRY CHRISTMAS. There would be no need for the proprietor to show that other traders were making trade mark use of the mark in order for those who used it be found to be infringing and the use of the words MERRY CHRISTMAS on a wide variety of household goods could have been prevented by all but P&G.
Merry Christmas here, here and here