When a mark is misused
Counterfeit perfume, lookalike packaging, an unused entry squatting on a word: what the register does when a sign is copied or neglected.
Struck by June Halloran · assayed by Petra Voss · · 5 min read
A mark is a promise about who stands behind a thing, and the promise can be attacked from two directions. From outside, by imitation: the fake handbag, the lookalike label, the counterfeit seized at the port. From inside, by neglect: a registration kept like a deed to a house nobody lives in, until the register lets a challenger clear it away. This piece reads both attacks together, because they are the same question asked twice: what keeps a shared sign honest after it is entered.
The counterfeit shelf
The crudest misuse is the counterfeit, an identical or near-identical sign on goods its owner never made. The scale is industrial: EUIPO's observatory and the EU customs authorities report seizures in the tens of millions of items a year, much of it arriving in small parcels ordered one at a time. Customs can hold suspect goods at the border on the strength of a filed application for action, which makes the frontier a strange extension of the register: officers read labels the way examiners read applications, for the difference between the entered sign and the struck copy. The bench keeps this in the first volume because the customs shelf is where the mark's public meaning becomes physical: a pallet detained is a sentence about a sign, written in cardboard.
The customs form
The border work has its own instrument, and it is more paperwork than raid. A mark holder files an application for action with customs: a dossier of what the genuine goods look like, where they are made, how they travel, what the fakes usually get wrong. With that on file, customs officers can hold a suspect shipment on their own initiative, and the holder is called to confirm whether the goods are counterfeit before destruction. The form is the register's logic extended to a warehouse: the public record of the real thing, kept in advance, so that the copy can be recognised by someone who has never seen the brand's own shop.
Confusion and the quieter copies
Between counterfeiting and honest trade sits the broad middle: lookalikes that come close without copying outright. Infringement here is judged by likelihood of confusion, the same test opposition uses, run the other way. Would the relevant public take the newcomer's goods for the mark holder's, or for a linked house? For marks with reputation the law reaches further, protecting against dilution and free-riding even without confusion: the sign that borrows the famous mark's pull without borrowing its name. A reader of shared marks recognises the shape: the register defends not just the sign itself but the sign's power to mean one thing, and the further a mark's meaning reaches, the further the defence is allowed to run.
The mark that dies of neglect
The gentler attack comes from the register itself. A mark unused for five continuous years may be revoked for non-use by anyone who applies, and the five-year clock never stops running. Partial use saves only the goods actually worked; the rest lapses. The rule exists because the register is finite: every entry fenced off and unfarmed is a word nobody else may use, and a register full of untended entries would be a commons paved over. Revocation for non-use is the register mowing its own meadow, keeping the book a record of live trade rather than a cemetery of intentions. And the burden sits with the owner to prove use, which is the register's polite way of saying the entry was never the point; the trade was.
Genericide: the mark that succeeds too well
A mark can also die of success. When the sign becomes the common name for the thing itself, when the public stops hearing it as one maker's word, the entry can be cancelled for becoming generic. The register's casualty list is famous: escalator, aspirin in many countries, thermos, names born as somebody's mark and buried as everybody's noun. Owners fight the slide with grammar policing and campaigns about adjectives, because once the public owns the word the register agrees it does. It is the sharpest expression of the journal's theme: a mark is held in common trust, and a community that absorbs the sign into the language reclaims it in full, without a court ever needing to say so twice.
What the two attacks share
Counterfeit and genericide look like opposites, one a theft, one a surrender. The bench reads them as twin proofs that a mark is a piece of maintained meaning. Outside misuse steals the meaning the owner built; inside neglect lets the meaning lapse; success without discipline gives the meaning back to the crowd. Each entry in this volume, from the CTM's first morning to the offices that strike hallmarks, is a different answer to the same question: who keeps the sign true. The answer is never only the owner. It is the office, the window, the clock, and the public that was always the point, the public that recognises the sign, relies on it, and finally inherits it.
Between the seizure shelf and the lapsed entry lies the whole maintenance budget of a shared sign. The bench pays it gladly: a mark is a commons, and a commons is only as good as its fences and its mowing.
The book's honour is kept the same way every commons' honour is kept: by the office that refuses, the owner who works the sign, and the public that was never supposed to look away.
