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 Sekhem
– European Union Trademarking
This page
is for the attention of people working with Sekhem in the European Union and
was posted in November 2006 with an update in February 2008. This website
also has pages
relating to the trademarking of Sekhem in Australia, the USA
and Hong Kong. Click here
for the Australia page,
click here
for the USA page and click
here
for the Hong Kong page. Other postings about
Sekhem related matters including trademarks and events subsequent to the EU
approval to trademark can be in the Information Centre.
Background to the Guidance
The need
for this notice lies in the successful application by Helen Belôt to trademark the name SEKHEM within the European
Union. Helen Belôt is the Australian Energy Master
who works with the Sekhem energy. There appears to be some confusion here in
the UK
and elsewhere about the implications of the trademarking
approval. The application to trademark was made after people had already been
trained as Sekhem Masters in the UK
and elsewhere in Europe. Depending upon what
was agreed at the time of the training, it is possible that some Sekhem
Masters may have rights under local contract law within the EU to use the
word SEKHEM which pre-date the trademarking
approval. Additionally, some people seem to have been given direction about
the use of the word and the Sekhem logo which is outside the scope of what
has been trademarked. I am posting this Notice to set out the historical
record of what I know about the EU trademarking
application and my role in it, what has been trademarked, issues arising for
people connected with Sekhem and some of the relevant legal concepts. Please
note that I am not a qualified legal practitioner and that this Notice is
intended to give people affected by the trademarking
some idea of the questions which they should be asking rather than try to
give definitive position statements.
My involvement
I
completed my training with Helen Belôt in her
combined Seichim / Sekhem / Reiki 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 Australia
some time earlier where application to trademark was made after training to
Master Level had already taken place there.
The second had just taken place in the USA where application to
trademark the name SEKHEM had been made by Helen Belôt. The application to trademark the word
SEKHEM in the USA
had been made against the background of the name being used there in a
variety of spiritual and healing contexts. There is even a registered Church
by that name there. Opposition against
the application to trademark was led by the American Energy Master Diane Shewmaker and included a very substantial amount of
documentary evidence showing that the use of the name was already widespread
in the USA
prior to the application to trademark.
The application to trademark did not succeed in its original form but
approval was given to trademark the word written in upper case letters as
SEKHEM and only when used in conjunction with the Sekhem logo. No trademarking approval has been given in the USA
for the use of the word Sekhem in any context by itself without the logo.
At the
time, I felt it was likely that application to trademark would be made in the
UK.
I would not get to know about it because I was no longer connected to the
Sekhem Association or the Sekhem people here. Whilst I had been training,
there had been some mention of the use of trademarking
as a means to prevent people saying that they were genuine Sekhem healers
when they were not. I was concerned about any potential application to
trademark because there were already people here using the word Sekhem in
healing systems for which the context was similar to Helen’s system. Their
lineages were either in what Patrick Zeigler had been teaching or in Diane Shewmaker’s Sekhem–Seichim–Reiki
(SSR) system. There were also other people using the name Sekhem in spiritual
and healing contexts that had nothing to do with any systems brought in by
Patrick or Diane or Helen. All these people would all be affected should
application to trademark be approved.
I kept
browsing the UK
Patents Office website on a regular basis. One day the regular searching
threw up an application to trademark which had been made by Helen and which was
dated 19th December 2000.
The application was being processed by the European Union’s Office of Harmonisation for the Internal Market (OHIM) in Alicante
for trademarking of the name SEKHEM throughout the
European Union. I was concerned that a
lot of innocent people who were already using the word Sekhem would no longer
be able to should the trademarking be approved and
decided to oppose it.
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 Paris
Convention for the Protection of Industrial Property which most countries
have signed up to.
·
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 Belôt 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 Belôt
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 Belôt
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 Paris Convention. The EU
trademark reference is #E2006393. It is valid in the following official
product categories:
·
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 UK, the trademarking approval does not apply to the Isle of Man,
Jersey and Guernsey.
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/ .
Term of the trademarking approval
The trademarking approval was granted for a five year period
up to December 2010. Under European Union law, application to renew the trademarking approval at the end of the five year period
may be made if the trademark owner can show continued usage of the trademark
during the current term of trademarking
approval.
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 UK
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 Belôt 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 UK
based healers.
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 UK
could go to their local branch of the Citizens Advice Bureau for some
preliminary legal guidance on this matter. There is not likely to be any
specific case law on such matters within the energy healing sector but it
should be possible for you to be given some advice of a more generic nature.
The CAB website is at http://www.citizensadvice.org.uk/
.
Thank you.
Robert
Originally
posted 24th November 2006.
Updated
22nd February 2008.
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