When a business is sold, the sale will normally include all the assets including the goodwill and any trade marks. When the business trades under a person’s name, this can mean that the founder of the business loses the right to use their own name for future business activities. Recently, fashion designer Elizabeth Emanuel sought to prevent the registration of the trade mark ‘Elizabeth Emanuel’. She had sold the right to use her name to the company which bought her business.
Her argument was that the trade mark could confuse or deceive customers into believing that the company’s clothes were designed by her. The European Court of Justice concluded that her name was not of such a nature to deceive the public about the quality or origin of the company’s products. She could not therefore prevent the company’s application for a trade mark in her name.
Somewhat more surprisingly, Apple Corps, the company set up by the Beatles, lost its case against Apple Computer, in which it sought to prevent the computer company from using the apple logo in connection with its ‘i-tunes’ business. The two companies had had an agreement under which Apple Corps could use the apple logo in its ‘record business’, which covered current and future recordings of music. Apple Computer was not to use the logo in connection with ‘physical media delivering pre-recorded content’.
In the view of the court, Apple Computer’s use of the apple logo was not to do with physical media, but a service by which data (music) was transferred. This decision is almost certain to be appealed.
