Trademark lingo – a hindrance for participation in society?

In AWA Blog, Uncategorized

Swedish media has lately relished in the fact that the language consultants Prodica has made an official complaint with the Parliamentary Ombudsman against the Swedish Patent Office.

The background is that Prodica tried to register the trademark GRAMMATIKDAGEN (the Day of Grammar) for services in class 41, but received an Official Action in which the Examiner of the Swedish Patent Office held that the trademark lacked sufficient distinctiveness for registration. Prodica then complained to the Parliamentary Ombudsman that the language used by the Examiner was contrary to the legal requirement for Swedish authorities to express themselves in a way that is tended, plain and understandable. Prodica went so far as to express that the language used by the Patent Office was a hindrance for participation in the society since it was incomprehensible and thus a bar to obtaining a trademark registration.

The text in question in the official action essentially reads as follows:

“A mark indicating only the nature, quality, quantity, intended purpose, value, geographical origin or other characteristics of the goods/services, or the time of manufacture of the goods, or has become a customary designation for the industry does not possess distinctiveness and cannot be registered.”

The Parliamentary Ombudsman, however, has decided not to pursue this complaint. It has stated that even though the text in question can be improved it is not so complicated that it cannot be understood. Furthermore, the Official Action contains the name and telephone number of the Examiner as well as contact information to the customer service of the Patent Office and the applicant can, accordingly, easily get further clarification, if needed.

The Ombudsman furthermore points out that trademark law is a complex legal area and that you need some basic knowledge of the legal field in order to comprehend the text in question. However, basic information on trademark law can be obtained on the web site of the Patent Office.

I am not sure if the web-site info helps very much. Even though I have practiced trademark law for thirty years I sometimes find myself reading official actions more than once in order to fully grasp the intentions and nuances of the communication. As a trademark attorney you are faced with complex language everyday, in decisions, legal texts etc. An important part of my job is to translate the trademark jargon into comprehensive language for my clients.

However, many of these wordings that appear complex to people in general are used to simplify the lives of the experts. By using legal expressions we can make sure that we are clearly understood by other persons skilled in trademark law, such as other trademark attorneys, examiners in trademark offices and judges in courts. The trademark profession is no very different from other professions in this respect. Try listening to a pair of doctors discussing in medical Latin, two mechanics bent over a car engine or two computer programmers discussing how to solve a technical problem in their field. The use of jargon reduces the risk for misunderstandings between experts.

I think that the overall opinion in Sweden is that the communication of the authorities is too complex and hard to understand for people in general and this is certainly the case when it comes to the trademark department of the Patent Office. This needs to change since a large number of the applicants are not trademark professionals. I agree with the Parliamentary Ombudsman, there is room for improvement.

Kristina Fredlund, European Trademark Attorney

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