AVIS DE DROIT PROTECTION DES SIGNES NATIONAUX

(iii) Protection Against Other Commercial Use
ROYAUME-UNI
The concept of a “trade description” of goods, which attracts criminal sanctions if falsified, is
defined to include any form of indication as to the testing or approval of the goods by any
person, the place at which the goods were manufactured or produced, or the person by whom
the goods were manufactured or produced; Trade Descriptions Act 1968, subsec. 2(1).
Protection is therefore clearly afforded to the real origins or national connections of goods.
Particularly specific rules exist to govern the use of the terms “port” and “madeira” in respect
of wine, but these were introduced in consequence of specific provisions in a bilateral trade
treaty between Portugal and the United Kingdom. Subsec. 3(1) of the Trade Descriptions Act
1968 requires a generous appreciation of when a trade description is “false”; it suffices to
show that the description is misleading, rather than strictly inaccurate, but it is not
indispensable to prove that anyone was actually misled. To obtain a conviction, it is not
necessary for the prosecution to prove that the defendant intended to apply a false trade
description. It is open to the defendant, on the contrary, to avoid conviction by convincing the
court that he did not know and could not by exercising reasonable diligence have found out
that the trade description he applied was actually false; Trade Descriptions Act 1968, subsec.
24(3). An alternative defence is that the application of the false trade description resulted from
a mistake, accident, or reliance on a third party, the defendant having been duly diligent and
having taken all reasonable precautions to avoid the result; Trade Descriptions Act 1968,
subpara. 24(1)(b).
The protection accorded by the Chartered Associations (Protection of Names and Uniforms)
Act 1926 to designated public interest organisations extends by virtue of subsec. 1(3) to
prohibition of the use of any names, uniforms, badges or designations which are so similar to
the actual names, uniforms, badges or designations of the protected organisations that they
lead reasonable people to think of the protected organisations.
For the purposes of establishing that a trader has been “passing off” his goods as belonging to
a class of goods to which valuable goodwill attaches, the courts have normally been prepared
to give relatively wide flexibility to the trade name under which the class of goods is known
to consumers. Product names which sound so similar to an established trade name as to be
likely to be confused with that trade name will therefore attract liability. This will depend
upon the particular goods in question however, and a defendant might be able to show that the
class is actually known to consumers by only one exact name, perhaps in the context of a
particular “get up”.
d) Protection des signes nationaux
(i) Protection Against Use as Trademarks
The national flags of other States Parties to the Paris Convention and such state emblems as
have been officially notified are protected from registration in the United Kingdom as trade
marks; Trade Marks Act 1994, sec. 57.
The flag of the United Kingdom (commonly known as the “Union Jack”) and the individual
flags of the jurisdictions which constitute that State (ie. England, Northern Ireland, Scotland
and Wales) and of the Isle of Man may be registered as elements of trade marks unless the
Registrar considers that use of that mark in respect of the particular goods or services would
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