Bob, I think this is the best explanation of why this matter had not been resolved in the courts. If the Hetchins name is indeed an unregistered trademark as most of the information available seems to imply, then I think Miller et al would be hard pressed to meet the conditions you quote for prevailing in court. It would appear that all Omega need do is apply sufficiently different decals so that the Miller and Omega products can be distinguished from each other. And given Miller's production of only 10 to 20 frames per year, a suit of doubtful success does seem ill-advised.
I must confess that I, like Ritchie, do not feel the sense of outrage against Omega that some seem to have expressed. While some may find Omega somehow being "unfair" to Miller, it strikes me this situation is akin to the principle of "adverse possession" in US law, which I am almost certain originated in English common law. I believe this is most commonly applied in the US to matters of land use and ownership, whereby if land is not cultivated or otherwise used by an owner, and if another person occupies and utilizes the land for some significant period of time without serious effort by the landowner to evict him or claim rent, then the occupant may gain ownership of the land under adverse possession. The social judgment embodied in adverse possession laws is that if the owner of an asset wiil not make significant use of it, then society is best served if ownership passes to another who will use it.
One might similarly take the view that if Miller is only going to make 10 or 20 Hetchins style frames a year and cannot justify the trouble and expense of registering the trademark, then perhaps it is better if Omega also be allowed to make such frames using the Hetchins name, thereby making a larger number of "Hetchins" frames available on the market. Perhaps this is why the trademark law Bob quotes developed as it did - tradesmen were expected to make a living from producing useful goods, not from owning a popular trademark. It would appear that an artisan like Miller is only entitled to insist that a competitor like Omega not deceive the public into thinking the two products are one and the same. I must say I don't find such a law so unjust.
Regards,
Jerry Moos
in Houston, TX
> Sadly in the absence of any contribution directly from David Miller or the
> owning consortium or for that matter Omega Cycles, with the exception of
> Hilary's contribution this discussion is pure conjecture and only adding
to
> the Hetchin's mythology. Protection of the name in the UK is generally by
> trademark - nothing else and not copyright. Anyone can come up with an
> unregistered trademark providing it meets certain criteria, but only
serious
> companies with big budgets and/or intentions apply for them and have them
> registered officially, gaining far greater protection. The biggest
> difference is in what redress is available when someone uses your mark,
and
> to quote the UK Trademarks database ;
>
> > If your trade mark is not registered you may seek redress through the
courts
> > under common law in a passing off action. For this to succeed you must
> > persuade the court, first that the mark used by someone else is
associated in
> > the public mind with your own product or service, and secondly that the
other
> > person's goods have been mistaken for your own.
> >
> > However, if your mark is registered you may sue for infringement under
trade
> > marks law. For this to succeed you have only to show that someone else
has
> > used a mark which is the same as (or similar to) your own registered
mark on
> > goods or services which are the same as (or similar to) the goods or
services
> > for which your mark is registered.
> >
> > In certain circumstances the deliberate use of your registered mark on
goods,
> > by another person and without your knowledge, may be classed as
> > counterfeiting. This is a criminal offence, and criminal proceedings may
be
> > initiated under trade marks law by police and Trading Standards
Officers.
>
> Unfortunately with the exception of the last paragraph enforcement of your
> rights to any trademark, registered or not would cost an absolute fortune
in
> both time and money, as does applying for one to be registered in the
first
> place. I cannot believe for one minute that if David Millar produces only
> 20 frames a year, he would even generate sufficient cash to merit
> registering the trademark, let alone merit any defence of an alleged
> infringement of the company's rights beyond a stock threat of legal action
> on the assumption that they bought the right's to an unregistered
trademark
> - using the original company name ?. Sad but very true, and nowhere on
the
> Trademarks database can I find any record of the Hetchins name being
> registered buy either of the parties involved.
>
> <Warning ! massive dose of personal opinion coming up >
>
> I am of the camp anyway that believes that once the last vestiges of the
> original company that produced the Hetchin's (or any other marque for that
> matter) are gone i.e. the last original owner / partner / framebuilders
has
> died / retired / moved to assembling Taiwanese Coke (tm) Can's then the
name
> no longer carries any weight in the "originality" stakes. They might all
be
> well executed Hetchin's but they are not a real Hetchins by any manner
just
> perhaps "in-the-style-of". Would you honestly buy a Ferrari built in the
> Skoda factory because they had bought the rights to use the name even if
it
> was a replica Daytona ? (classic content = they didn't use Campagnolo
wheels
> as far as I know)
>
> Time to leave this topic alone again till we hear some proven fact direct
> from the horses mouth........
>
> best wishes for the season
>
> Bob Reid
> Stonehaven (3" more snow fell today)
> Scotland.