Bad Faith, Public Policy and Morality: How Open Concepts Shape Trade Mark Protection

Abstract The grounds for refusal or invalidity relating to trade marks filed in bad faith being contrary public policy accepted principles of morality are based entirely on undefined concepts and require a value judgement be made by the adjudicating authorities. This openness has led exploration new lanes these case law beyond traditional scope their application. paper examines how flexibility at hand considerable uncertainty assessing whether particular mark is registered offends against – some cases both. In particular, objective, consistent viewpoint average consumer, which normally applied other areas law, appears exiled from analysis cases. faith, assessment involves subjective element, as there mandatory requirement that should intent part applicant. argues much when applies could overcome adopting an objective its assessment. By contrast, offence remains objective. It perception model member society with thresholds sensitivity tolerance who does not always overlap consumer goods covered Infringement also linked “top-down” rules laid down authority.