"When I went on maternity leave I — naively — expected a short pause from trade marks. Little did I know that new motherhood is a microcosm of trade mark issues.
Feeling a tad inadequate when it comes to infant care, I believed that I could contribute when it came to discussing the quality of nappies. Excitedly reciting the CJEU's decision in BABY DRY, I noticed with some dismay that the other mothers' eyes started glazing over when I elaborated on the unusual juxtaposition of the word elements. Was the mark distinctive and should it be kept free for others, I mused. The response I got was sobering and taught me about common sense, which trade mark practitioners sometimes lack: “Only if it keeps the baby dry should a nappy be called that!” Oh well, never mind the origin function.
An ‘emotional issue’ new mothers face is whether to use formula milk. I was startled by the unexpected response I received on a parenting forum when discussing one charity's demand to introduce plain packaging for formula. It was argued that formula packaging should have no branding at all. My: ‘All issues of property rights aside, I really want to know the brand’ was answered with ‘Why do you need to know, is it not enough that it says formula?’ The origin function (not) striking again.
There is, however, a serious side to it all, which I realised when it came to buying a certain brand of baby carrier online after having learned from parenting sites that there are numerous, potentially dangerous, counterfeits in circulation. The fact that there are such counterfeits is telling in itself. What is more surprising is that for some parents the idea of being associated with a certain brand will make them decide to buy obvious fakes.
Seeking to send a message about consumerism, Russian artist Petro Wodkins created a website which purported to offer nappies under the brand of a famous Italian designer (‘When only the best is good enough’). The fact that I looked at a blogpost about this and initially wondered how expensive such nappies might be rather than realising it was satire, tells you that it is time for me to return to work. Motherhood has however made me re-evaluate the CJEU's comments on “the investment function” (“a reputation capable of attracting consumers and retaining their loyalty”) when I read that most daughters buy those brands for their babies which their own mothers already trusted. Having grown up in Germany, I live in the UK and the brands are not always the same. You guessed it, I stocked up on childhood brands when on my most recent visit to Germany. Nonetheless, I am still not convinced that you should decide cases based on trade mark functions, but that is a different matter".
Baby™ — a not quite serious look at motherhood and brands
This month's guest Editorial comes from Birgit Clark (Baker & McKenzie LLP), a senior trade marks practitioner, member of the MARQUES Class 46 blog team and a founder member of the JIPLP editorial board. Birgit writes as follows: