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Battle of the Daves

Battle of the Daves

Published: 22.08.11 at 17:42

Back in January, Dave the TV channel had an application to register the name Dave as a Community Trade Mark rejected by the European Union's Office for Harmonisation in the Internal Market (OHIM) after opposition from the branding consultancy also known as Dave.

The opposition's arguments were based on the English law of passing off based on prior use of Dave as a brand name - the branding consultancy was founded 4 years before the TV channel came into existence.

Rights can exist in brands even where trade marks have not been registered if it can be shown that a reputation has been built up in the mark, use of the mark by another creates confusion in the minds of the consumer and this has caused, or is likely to cause damage to the brand holder. For further explanation on the law of passing off see our earlier news story.

If rights in an unregistered trade mark can be established, this can be grounds on which an application for registration of that mark can be opposed.

Dave the TV channel appealed against the original decision stating that OHIM had not applied the law of passing off correctly. It is unlikely that the public would think that Dave the TV channel and Dave the consultancy agency are related. It is also hard to imagine what damage would be caused as it is not the case of one poaching the other's customers.

However, these points will no longer have to be argued as Dave the consultancy agency has withdrawn its opposition to the registration citing that the two parties are holding talks. Both parties have declined to comment on what the final outcome will be but it is possible that a compensation payment may be made in exchange for withdrawal of the opposition.

Thanks to the IPKat for that story.

Photograph (some rights reserved) by TimmyGUNZ

 

Please note that this article discusses the legal position in the UK at the time of publication. It provides general information only but is not to be regarded as legal advice. You must take advice from a specialist lawyer in relation to your specific circumstances. Further, you should seek additional legal advice when dealing with parties based in other parts of the world or works originating from other parts of the world as the legal position may vary.

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