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Date
of update: November 2006
This
is file seisek.12.chapter10.04.eutrademarking. This is a new file created in
November 2006 and replaces file seisek.12.chapter10.04.sekhemassociation.
TRADEMARKING IN THE EUROPEAN
I completed my training with Helen Belot
in her combined Reiki / Seichim / Sekhem
system in September 1999. As written
earlier, 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.
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.
- The Sekhem logo which was developed
by
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.
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.
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