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Sekhem –
Trademarking Guidance (EU)
This page is for the
attention primarily of people working with Sekhem in the European Union. The date of posting is November 2006 with an
update on 22nd February 2008. This website also has separate Notices
relating to the trademarking of Sekhem in
Background
to the Guidance
The need for this notice
lies in the successful application by Helen Belot to trademark the name SEKHEM
within the European Union. Helen Belot is the Australian Energy Master who
works with the Sekhem energy. There appears to be some confusion here in the
My
involvement
I completed my training with
Helen Belot in her combined Reiki / Seichim / Sekhem system in September
1999. Shortly after I completed that
training, an incident happened. As a
result, I decided that I did not wish to continue to be a member of the Sekhem
Association and did not renew my annual membership when it fell due. This meant
that subsequently I was not eligible to receive any official updates on
developments within the official Sekhem Association.
In 2001/02, I wrote my own training
manual for what I had been taught by Helen. When I was writing it, I tried to
research how other people were working with Sekhem through internet search and
found two separate sets of references to legal actions relating to Seichim and
Sekhem. The first had taken place in
At the time, I felt it was likely that
application to trademark would be made in the
I kept browsing the
The EU
Trademark Authorisation Procedure
Essentially, there are two
sets of procedures which are followed within OHIM once an application to
trademark is received. The first is to publish details of applications to
trademark, to receive applications of opposition to trademark applications
following publication, and to go through due legal
process to hear the oppositions to trademark in a special trademarking
Court. The second is for OHIM itself to
review the market place for existing common use of what is to be trademarked and
to identify whether there are other people and organisations using the same or
very similar logos and slogans and names to those which are the subject of trademarking applications.
My application to oppose the application to trademark included material
and arguments that were intended to feed into both procedural routes.
EU
Procedure – Application to Oppose
Application to oppose the trademarking application can only be made on the basis of a
prior right to use the name to be trademarked. The EU law here is based upon
the
- I argued that I had a right to use
the word Sekhem prior to the date of application to trademark. The EU did not accept this and ruled
that Helen Belot had a prior right over the word. Prior right was determined to be based
upon the earliest date of use or of ownership of the word, not the date of
application to trademark.
- I argued that I had a contractual right
to use the work Sekhem which had already been given to me by Helen Belot prior
to the date of application to trademark and that this would be affected by
any approval of the trademarking. The Court
determined that approval to trademark would be given on the basis of
evidence of earliest date of use or of ownership of the word and that any
contractual rights given after the earliest date would not influence the
approval of the application to trademark. The Court advised that if I had
a contractual right to use the word that pre-dated any trademarking
approval, the remedy for any attempt by the trademark holder to restrict
my use of the word would be to seek determination of my right to use the
name at an English Court under English contract law.
- I submitted correspondence from a
number of other people using the word Sekhem in the European Union. The
Court was not able to accept this evidence for the application to oppose
procedural route because these people had not given me power of attorney
to represent them.
- Nobody else within the European Union
submitted an opposition to the trademarking.
EU
Procedure – OHIM Review of the Market Place for existing common use
- I presented evidence of the spiritual
nature of the word Sekhem and argued that it was not appropriate for such
a word to be trademarked. There was no basis in EU Law to consider this
argument so it was rejected.
- I presented evidence of over two
hundred examples where the word Sekhem was being used in the public
domain. There were examples from nearly every country within the EU. One
of the tests that OHIM makes to assess whether there is already existing
common use of something to be trademarked is to find at least two hundred
examples of the common usage. The evidence that I provided included the
spelling of the word Sekhem in a number of different combinations of upper
and lower case letters such as SEKHEM, Sekhem and sekhem.
The Court advised that because application to trademark was for the word
written in upper case letters only as SEKHEM, there was no application to
trademark the word in other combinations of upper and lower case letters.
Therefore, as the majority of examples of the use of the word that I
provided were not all in upper case, I was not able to provide sufficient examples
of common use of the word to lead to a rejection of the application to
trademark. Additionally, when I applied to oppose the trademarking
of the word in any combination of upper and lower case letters under the
opposition procedural route, the Court would only allow my application in
respect of the upper case version, SEKHEM.
- One of the bases in law for
determining whether a word is suitable for approval to be trademarked is
its distinctiveness which separates it and makes it immediately recognisable
from any words in common usage. I presented the EU with a lot of evidence
showing the use of the word Sekhem in various contexts and argued that the
act of writing it in upper case letters did not give sufficient
distinctiveness to justify approval to trademark. The Court did not accept
this argument.
- There is a legal concept in trademarking law called ‘passing off’. This means
using very similar names or logos for products and services for which
there is already a registed trademark. For
example, we are all familiar with the trademarked Coca-Cola logo. If
another cola manufacturer chose to bottle the drink in similarly shaped
bottles and with a similarly designed logo but just changing the name
slightly to Coca-Kola, in law this would be seen as an attempt to copy the
Coca-Cola product and to ‘pass it off’ as the Coca-Cola product. I made representation to the Court that
even though I might not have found two hundred examples of the word Sekhem
spelled in upper case letters, I had found sufficient examples of the word
for one of the product classes for which approval to trademark was being
sought, namely the category which included health care services, for there
to be the potential of a legal quagmire in terms of the ‘passing off’
concept in respect of existing users of the name if Helen Belot’s application to trademark were approved. The
Court seemed not to pick up this point and not to take it into account in
their decision to approve the trademarking.
- I advised that should there be a
change to what was to be trademarked so that there would be sufficient
differentiation between the common uses of the word Sekhem and what was
intended to be trademarked, I would withdraw my opposition. I suggested
that a suitable option might be to register the trademark as Helen Belot
SEKHEM. This suggestion was not accepted by the trademark holder.
What has
been trademarked
Helen Belot made application for the word SEKHEM in
upper case letters to be given trademark status in certain product categories
and the EU has now given approval for the following categories. These are
internationally recognised classes for the purposes of trademarking
under the
·
Class
03:
Bleaching preparations and other substances for laundry use;
cleaning, polishing, scouring and abrasive preparations; soaps; perfumery,
essential oils, cosmetics, hair lotions; dentifrices.
·
Class
33:
Alcoholic beverages (except beers).
- Class 42:
Health care services inclusive of medical clinics, naturopaths; massage; medical assistance; pharmacy advice; physiotherapy; rest homes; sanitoriums.
Although I had originally
believed that the Sekhem logo had not been trademarked, I was incorrect about
this. In September 2007 I became aware
that the logo had been trademarked under EU trademark reference #E002006773
(click here
to search for #E002006773).
What has
not been trademarked
As far as I am aware,
approval to trademark has not been granted for the following:
- Any use of the word Sekhem written in
upper case letters as SEKHEM for product categories other than Classes 03,
33 and 42.
- Any use of the word Sekhem written in
any combination of upper and lower case letters other than in upper case
as SEKHEM for goods and services within
Classes 03, 33 and 42.
- Any use of the word Sekhem written in
any combination of upper and lower case letters for product categories
other than Classes 03, 33 and 42.
I have written to OHIM three
times to request confirmation that my understanding of the above is correct but
have received no response. I have posted to this website, therefore,
transcripts of correspondence between myself and OHIM on this matter. The
transcripts are on a different page which also includes reproduction of
relevant correspondence from the time of the opposition proceedings. Please
click here
to read them.
Territorial
Jurisdiction of the EU trademarking approval
In general, the EU does not
have legislative jurisdiction over what are recognised as the Overseas
Countries and Territories.
http://en.wikipedia.org/wiki/Special_member_state_territories_and_their_relations_with_the_EU
gives details of the OCTs. If you live in one of these
territories please check to see whether the EU trademarking
approval for SEKHEM applies to where you live. As far as I am aware, close to
home here in the
The trademarking
approval extends to countries which joined the EU after the date of the
approval and which will join the EU in the future. If the EU approved trademark
is already trademarked in a country joining the EU, the local trademark owner
may apply to a local Court to retain ownership of the trademark in the
territory of the joining country. Details of all of this can be found on OHIM
website at http://oami.europa.eu/ .
My
position
When I was training with Helen,
I sought clarification from her that we had an agreement for myself
and all my students and their students down through my teaching line in
perpetuity to teach her system and to use her teaching materials and logo. This
she confirmed. This means that a contract to that effect exists in English law.
There were no conditions attached. Although I do not usually write Sekhem in
upper case letters anyway, should there ever be any difficulty between Helen
and myself or between Helen and anybody within my teaching line, it would be
best if the matter went to Court for determination. As far as I am aware at this stage, anybody
in my teaching line is eligible to use the word Sekhem written in whatever way
they wish and in whatever product categories they wish.
The
position of other Sekhem healers in the
A trademark owner has the
legal right to control the use of the trademark. If permission to use what has
been trademarked was given at a date prior to the date of trademarking
approval and for which money changed hands, there could be a contractual right
to use the trademarked word which pre-dates the trademarking
approval. The following gives an indication of some of the issues that would
need to be considered in coming to a view about the existence of pre-dated
contractual rights in respect of SEKHEM.
If you have a SEKHEM practitioner or
Master or Master Teacher certificate, it would be necessary to understand what
contractual right was given to use the word SEKHEM by Helen Belot to the person
at the top of your lineage tree immediately below her. It would also be
necessary to understand the contractual rights passed down the lineage tree
from teacher to student. If Helen gave permission for the word SEKHEM to be
used without restriction and this has been passed down the lineage tree without
amendment, there could be a contractual right all the way down through your
part of the lineage to use the word SEKHEM without restriction. If somebody
part way down the lineage tree has not followed restrictions imposed by Helen
at the top of the tree, he or she might have been creating terms and conditions
in a contract which he / she had no right to create. In such a situation, the
law regarding misrepresentation might be relevant. In simple conceptual terms,
this would be likely to require some recompense from the person who had
misrepresented to the person who had paid for the training.
In the situation where no written
contracts were created at the time of training in SEKHEM, a Court would consider
the following in the event of dispute. In English law, verbal statements and
agreements regarding specific (or express) terms and conditions at the time of
agreeing a contract are accepted as evidence of contract. If there are no
witnesses to any verbal statements and agreements, these can be difficult to
prove in Court. In the event of difficulty here, a Court would seek to construe
what was intended
contractually when money changed hands. In other words, the Court would seek to
draw up what the contract was intended to be and then make judgement about the
dispute accordingly. Additionally, a Court would be likely to make
determination on implied terms and conditions in a contract. Implied terms and
conditions are those which are not expressed specifically but can reasonably be
assumed to apply. In the case of SEKHEM, it could reasonably be assumed that
the granting of a certificate without any restrictions saying that somebody is
certified as a Master Teacher in SEKHEM implies that the person had been given
approval to practice and to teach SEKHEM.
In the case of SEKHEM, custom and practice in the energy healing sector
where attunements and teaching pass down a lineage might be considered to imply
that the issuing of a SEKHEM Master or Master Teacher certificate without
restrictions represents approval given to practice and to teach SEKHEM
successively from teacher to student down through the lineage tree.
If you are teaching SEKHEM, it would be
advisable to work your way up through your lineage tree back to Helen to
understand what contractual arrangements were made with each teacher regarding
the use of the word SEKHEM together with any restrictions imposed. If for any
reason it would appear that you do not have a contractual right to use the
word, the trademark owner has the right in law to ask you to refrain from using
the word. Additionally, you could then also have difficulties with any person
that you have trained because you would not have had the legal right to use the
word SEKHEM. This could have financial consequences for you.
One of the difficulties of the trademarking situation is that the application to trademark
took place after SEKHEM teachers had already been trained. I would expect that Helen would have taken
legal advice on the issues affecting such teachers and should be able to advise on their positions so that all sides can operate
within the law in case they are not able to come to mutual agreement on the way
forward. It would be advisable, therefore, to contact Helen direct to discuss
your position. In law, Helen would be
within her rights to require that any contractual restrictions should be
followed but would not be able to require any additional restrictions outside
of what already exists in contract.
If you are one of the people who has been
telling other people that they cannot use the word SEKHEM, you need to ensure
that you know what contractual rights have been passed down any branches of the
lineage tree to the person who you are communicating with. You also need to be
mindful of exactly what has been trademarked. It is not correct to tell people
that the word in any combination of upper and lower case letters unless written
as SEKHEM is trademarked. It is not correct to tell people that the logo has
been trademarked. You also need to be acting upon the authority of the
trademark owner.
The
position of other Sekhem healers elsewhere in the EU
It would be advisable for
other Sekhem healers elsewhere to check with their local national legislation
in case your national laws have any similarity to what I have outlined above
for
Right of
appeal against the trademarking
If something has been
trademarked which somebody had a right to prior to the trademark owner, it is
possible to follow an appeal procedure which will result in a revocation of the
trademarking approval by the EU trademarking
Court. If anybody believes that they have a prior right to use the word SEKHEM
as has been trademarked, they should contact OHIM.
Future trademarking of Sekhem
Whilst I cannot prejudge any
decision making by the EU Court, I think it unlikely that other versions of
writing the word such as sekhem and Sekhem could be
trademarked in the future within the EU as they are in common usage all around
the EU.
Future
actions by myself
Unless anything unforeseable happens, I do not think that there will be any
future action on this matter by myself. If anybody needs to discuss this matter
with me, please feel free to contact me.
Alternatively, people in the
Thank you.
Robert
Originally
posted 24th November 2006.
Updated
22nd February 2008.
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