Trademarks: Can you own a colour?

IMPORTANT LEGAL NOTICE:

Don't paint your van bright orange if you're a double-glazing fitter.

For it seems that this is the latest in a long line of things you can't do if you're in business. Like, for instance, making hoovers or answerphones.

> For these - and millions of other everyday words, pictures, sounds, colours, in fact nearly anything - are not the everyday things you might imagine.

"Hoover" is not a word for non-specific vacuum cleaner. "Ansafone" is not just any telephone answering machine. And tapping your finger on the side of your nose in an "I've got a secret" sign is not just any gesture.

They all have special legal status, because while no-one can stop you using words or gestures in your own private life, if you ever tried to use them in business in a way that threatened the "owner", you could end up in court. (The finger and nose gesture is a trademark of the Derbyshire Building Society.)

Princess Di's face could not be patented

Dyno-Rod, the company better known for clearing blocked drains, is threatening to take a Sheffield glazing firm to court to stop it having orange vans.

Roger Moody, the owner of the Sheffield glaziers in question, said he had no intention of fooling people that he was actually Dyno-Rod.

But the boss of Dyno-Rod told reporters: "We have a trademark and we will fight to keep it. The point is to make it clear that no-one can pass themselves off as us whether wittingly or unwittingly."

Trademarks exist because companies want to protect their own identity and stop rivals pretending to be them. It's not the first time the issue has come into the news.

• Earlier this year the Diana Memorial Fund lost an application to trademark the late princess's face, although it has successfully trademarked her signature.
• The name "Lady Di", though, is the subject of a bid by German businessman Andre Engelhardt who wants to market a range of bras and knickers with the label.
• Last year the company which is running the Millennium Dome withdrew an application it had made to trademark the picture of the dome but which inadvertently included nearly all of the London skyline.

It is not widely known how broad the category of trademarkable things is - the finger gesture being a case in point. (Tipping a bowler hat is a trademark of the Bradford and Bingley Building Society.)

Tip of the bowler hat - Bradford and Bingley's trademark

But businesses cannot have it all their own way. Firstly they cannot simply decide they are going to claim something as their own.

They must first show that whatever it is they want to trademark is not too generic a term. Next the application has to show that the symbol or word is already recognised as their mark by the public before it will be protected by law. And they can only protect it for certain purposes.

So there would not be a blanket trademark on a picture of the Houses of Parliament. But you would run into trouble if you tried to sell a brown sauce with the picture on the side, as that would infringe HP Sauce's trademark.

And in Dyno-Rod's case, their shade of orange is registered for its range of property care services.

But not everything is what it seems.

Geoff Sargant, spokesman for the UK Patent Office, said in this country the letters "TM" after a name were "totally meaningless".

"It has no legal standing under UK law at all. In America, it means a trademark has been applied for, but in this country there is the symbol of the letter 'R' in a circle which means 'registered trademark'. It's a criminal offence to use it where a trademark has not been granted."

FOOTNOTE:
In a related aspect of law, the charity ActionAid has applied for a patent on the traditional childhood game of conkers. Generations have collected horse chestnuts, then pickled them, dried them or baked them, and strung them on a bootlace to try and smash other conkers with them.

Conkers - clearly it's not only a game

But if the charity's bid succeeded, it could - conceivably - put an end to the game. It has made the application to protest at companies trying to take out patents on existing crops such as basmati rice, and highlight new laws on patenting life forms.

While not seriously wanting to stop children playing conkers, it hopes to draw attention to what it sees as "biopiracy". The issue of patenting life forms is to be debated at the World Trade Organisation's Seattle summit next month.

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