Trade marks used together ford prefect but whether

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trade marks used together ("Ford Prefect"), but whether the secondary word is used as a trade mark is a question of fact. If it is a fancy word, then obviously it 45 is a trade mark because it could not be taken as anything else. But where it is highly descriptive I see no reason why a member of the public should take the mark as a badge of origin. And that is particularly so where the product is a new sort of product, as here. The public are apt to take the name of a novel product as a description rather than a trade mark, particularly where the name is not 50 fancy but is descriptive or laudatory. I do not think Robertson's use is as a trade mark. 20 26 January 19%. To be reported: [1996] R.P.C. 307 Downloaded from by Makerere University user on 03 September 2019
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300 Jacob J. British Sugar Pic v. [1996] R.P.C. James Robertson & Sons Ltd. I find confirmation for this view by considering what the average consumer, aware of the Robertson product, would think on seeing the name used for a rival product. Suppose for instance that Marks and Spencer produced a product labelled "St Michael Toffee Treat". I think the reaction would be "Oh I see M&S 5 are doing a toffee treat too". And the reaction would be much the same even if no maker's name appeared on the jar: "Oh, someone other than Robertson has gone in for making a toffee treat". I am, of course, aware that the words "Toffee Treat" are written in a fancy 10 way. But then so are many other mere descriptors. One only has to look at how British Sugar write such words as "meringue mix" or "golden syrup" to see parallel sorts of use. I do not think this affects the matter one way or the other. Nor do I think it matters that Robertson's also use the description "toffee spread". A thing may have more than one description. 15 British Sugar say that people will inevitably not use the full expression "Robertson's Toffee Treat": they will just say "Toffee Treat". That is probably so, but whilst there is only one product like it such usage would far from necessarily indicate the product of one maker. Once there is more than one, 20 things might be different, but it would then have to be shown that the phrase was being used to indicate one make rather than the other before trade mark significance could be attributed to the phrase. British Sugar's best point is that at least some in Robertson's regarded "Toffee 25 Treat" as a "brand", whatever that may mean. A number of discovery documents show this and Ms. Taylor, Robertson's witness, fairly accepted that the design objective was: "To establish 'Toffee Treat' as a prominent product/brand name in its own 30 right" and that was how Robertson's proceeded. The documents speak of an intention to create a "brand identity". And Ms. Taylor accepted that the prominence of the words "Toffee Treat" on the label were "to promote the brand name". 35 I am not persuaded that any of this establishes that the phrase was ever thought to be a trade mark in its own right. Robertson's problem was that they were launching a new kind of product and one which was not a jam. They needed
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  • Fall '19
  • The Land, Makerere University, SONS LTD, James Robertson, Jacob J

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