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Intellectual Property Law (Specifically Trademarks)

Hi,

I'm just wondering if anyone can help with (mainly the reading of) this question I have to do? I'm currently on 1500/2000 words and I'll be buggered if I know what to talk about (and I think I've gone wrong somewhere but that's because of the wording of this bloody question)

Hathern Rugby Club was formed in 1896 and recently entered the professional era by trading under the name ‘Loughborough Bullfrogs’ which they have registered as a trade mark. The club has a large and loyal fan base locally. For several years Martin and Harry have run a stall outside the ground selling hats and scarves with the club badge and the words ‘Loughborough Bullfrogs’ on them. They have also given away badges with the word ‘Loughborough Bullfrogs’ printed on them. They provide receipts for any customers who ask for them and on the bottom of the receipts it clearly says that they provide merchandise for loyal supporters and have no official affiliation to the club at all.

Loughborough Bullfrogs has had a very successful season and is facing the prospect of being promoted to the national premier league with the prospect of very profitable marketing opportunities for merchandise. The club’s marketing director contacts you for advice regarding the activities of Martin and Harry.

I've gone through how Hilda and Margaret are 'passing off' the unregistered trademark of the team logo, and how the disclaimer makes no difference (as in Arsenal v Reed).

I'm having trouble with the registration of 'Loughborough Bullfrogs' as a trademark. I've currently got written down that Martin and Harry can attempt to invalidate the trademark (as the question reads as if they've been using it longer) as it is identical to their unregistered trademark and is used for similar/identical products (as in section 5(4)).

I'm looking at the other way around (the team suing H&M for breach this time) but (as the badges are being given away), they'd have to file for an interlocutory injunction (as there's no financial compensation from these free badges).

Which one is right (or should I include them both)? It seems a bit daft that they'd file a suit against the team themselves (and thus render the whole 'giving away badges for free' irrelevant) but at the same time it seems wrong that the team can sue them for using the name despite the fact they (may) have been using the name for longer.


Spent 3 days looking at both sides of this over and over again (emailed my tutor for clarification but as yet no response so I thought I'd try here) and the deadline is rapidly approaching.

I've also spent about 300 words on how to register the logo as a trademark (just to get words in) but I'm thinking this is irrelevant given how they've registered the team name as a trademark.


Cheers in advance for any help.

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