§ Lord Lucas of Chilworthasked Her Majesty's Government:
Whether the United Kingdom retail industry is able to obtain trade mark protection for a fascia name describing a unique and distinctive service; whether this applies to the retail industries in other member states of the Union; and whether the situation is different for the hotel, banking and restaurant industries in this country.
§ Lord Fraser of CarmyllieEach application for a trade mark, including applications from the retail industry, the banking, hotel and restaurant industries, is considered by the Registrar on its merits against criteria for registrability set out in the Trade Marks Act 1994. A fascia name may be registrable to the extent it distinguishes the goods or services of one business from those of others, and provided that the mark is used in respect of the provision of goods or services in respect of which a trade mark may be registered.
Council Directive 89/104/EEC seeks to approximate the trade mark laws of the member states of the European Union, and to ensure the same principles apply throughout the Community.
§ Lord Lucas of Chilworthasked Her Majesty's Government:
Whether it is possible for retailers to file a single application to register a shop name as a trade mark and, if not, whether it is possible to change the law to permit this as part of the deregulation initiative.
§ Lord Fraser of CarmyllieAn applicant may apply for registration of a trade mark which is used as a shop name provided that the mark is used for the provision of services in respect of which a trade mark may be registered.
Owing to one of the deregulatory measures adopted in recent trade marks legislation (the Trade Marks Act 1994), it is possible to file a single application to register 163WA a trade mark in several or all classes of goods and services. However, it is not possible to use the powers provided under United Kingdom legislation relating to deregulation to modify either the scope or the meaning to be given to the provisions of the Trade Marks Act.
§ Lord Lucas of Chilworthasked Her Majesty's Government:
How far they have exercised the principle of subsidiarity in implementing the European Union's Trade Marks Directive; and whether it would be possible under the directive to exercise subsidiarity to allow the Trade Marks Registrar to register retail service marks.
§ Lord Fraser of CarmyllieCouncil Directive (89/104/EEC), which seeks to approximate the trade mark laws of the European Union member states, adheres to the principle of subsidiarity since its scope is limited to those provisions of trade mark law which affect the functioning of the Internal Market.
The directive does not determine whether a trade mark may be registered for retail services. This question must be decided under the provisions of the Trade Marks Act 1994, which implements and fulfils the United Kingdom's obligations under the directive. The principle of subsidiarity cannot of itself be relied upon to interpret the meaning of harmonising provisions of directives, which is ultimately a matter for the courts to determine.
§ Lord Lucas of Chilworthasked Her Majesty's Government:
Whether it is lawful under United Kingdom law for the Trade Marks Registrar to accept applications for the registration of retail service marks; and, if so, how many such applications have been accepted.
§ Lord Fraser of CarmyllieThe law concerning the registration of trade marks in the United Kingdom is the Trade Marks Act 1994. Applications for registration of marks for retails services were refused under earlier legislation. The Registrar of Trade Marks has recently received the opinion of leading Counsel on the registrability of such marks under the current legislation, and is considering that opinion.