Spain, December, 2020
The terrible disease that is hitting us worldwide has also another face in terms of business opportunities. In the industrial and intellectual property sector, the first thing that comes to mind are the multiple developments in the field of medical-scientific research against the clock fight for the pandemic vaccines, medicines, smart tissues, or others personal protection items. But there is another field, sometimes dark, sometimes prosaic, which also revolves around the disease.
In the recent months, hundreds of brands have been worldwide applied for including the term COVID as a central element; dozens more specific including COVID19; and some others, just as relevant, with terms and sentences associated with the moment we live such as PANDEMIA, RESISTIRÉ i.e. I WILL RESIST (more than twenty) or #YO SOY LA RESISTENCIA i.e. I AM THE RESISTENCE.
While it is true that most have a certain component playful and, without addressing the good taste of its owner:
For a board game
or the lack of commercial appeal of the distinctive sign chosen, no matter how fashionable the term could be:
To distinguish a pizzeria
some of them can be misleading today and depending on the circumstances in each case, dangerous if offered as a guarantee against the medical and scientific evidence.
Just in Spain, numerous distinctive sing applications have been filed with these characteristics without the Spanish Patent and Trademark Office having, to date, objected to the least:
Let us remember that the Trademark Law allows, ex officio, to assess whether a distinctive sign incurs some of the absolute prohibitions that would prevent its registration. Among otherms sub f) and g) of article 5:
- f) Those that are contrary to the Law, public order, or decency.
- g) Those which are likely to mislead the public, particularly regarding the nature, quality, characteristics or geographic origin of the products or services
But this same situation is repeated in other administrations such as the EUIPO or the USPTO (trademark offices of the European Union and the United States, respectively) allowing access to the registration of trademarks with identical characteristics:
Given these facts, we wonder: Should the authorities intervene ex officio against a possible brand that, today, could be deceptive but not be so in a few years?
Remember that a trademark is valid for 10 years and until the fifth year its owner has no obligation to use it in the market.
Are they, therefore, “visionary” brands or simply opportunistic?
Certainly, some come to encompass the entire spectrum studied: deceptive, tasteless, unattractive commercial and even close to the crime, as it would be the Chilean brand
COVID19 in class 01 claiming for: Chemical and biological compounds made for the treatment of physical, mental, and social well-being of a patient affected by the virus and not only the absence of the disease. Including drugs, remedies, medications.
Others take advantage of the severity of the virus to turn it into an unambiguous commercial message, such as the US brand
COVID in class 13, covering firearms.
And yes, indeed, the European Union trademark (I AM THE RESISTENCE), was filed by the famous anti-vaccine Spanish singer Miguel Bosé Dominguín (at least this is what appears in the database).
Author: Salvador Díaz de Prades. Partner