The Soil Never Sleeps

The Soil Never Sleeps but sometimes a blog must slumber and I have decided to end this blog with a little tribute to a kind client. After all it is our clients to whom we sell our skill and knowledge that are the final arbiter of our work and whether it was worthwhile.

Some time ago my good friend, Jane Lambert of Counsel, an insatiable blogger to whose ongoing work I commend you, introduced to me a farmer in search of some trade mark advice. A certain amount of time and a great deal of endeavour later, he and his colleagues had established the PASTURE FOR LIFE movement. My role was modest, but we did manage to achieve the certification mark registration at the UK IPO
navigating the sometimes arcane requirements of the examination system. The certification mark is a central element of  any Association that wants to make a valid promise about the quality and origin of produce . The carefully drafted rules set an objective standard that is more than marketing hype.

I was delighted last April to receive two poems printed on card that now adorn my work-space. For not only is the Pasture for Life Association (PFLA) a certifying authority for the best meat you can buy but they also have a poet in residence. How cool is that? Food for the body and the mind. You can listen to the poem of the title here: But that was not all my generous client sent. Next came a whole book of poems and this I commend to you because they are so wonderfully evocative. It's a slim volume but it contains interleaved stories of visiting PASTURE FOR LIFE farms during four seasons of the year.
In Spring in Cornwall at Woodland Valley Farm, Ladock you will meet the Cavalry of Janet.
In Summer in Yorkshire you can rest against a wall at Hill Top Farm, Malham. 
This is a poem entitled 4 minutes 33 seconds and the typesetter has not told you where to spend them. It cries out to be read aloud, but meditatively, a word or phrase at a time. If you were a teacher this would be a great book for class work. It's accessible and many of the poems tell stories and all celebrate the beauty and productivity of the English countryside.
In Autumn at Romshed Farm in Kent you can watch (I know its a poem) Bella the pig farrowing and the chickens being fed.
To encourage you to run off and buy this elegant volume over on the author's website take a little Suppertime with Adam Horovitz:. It's not all the poem just a snack to tempt you:

You can't escape eating meat

on  a pasture farm, Felicity says, It's
almost as a natural as breathing.
She looks wistfully at her vegetables
while sister Jackie, determinedly thirteen,

balks and begs for sausages, will not
touch the chilli Chris has made.
He hasn't told them about the beans.
If they're good for feeding pigs,

they're quite good enough for us,
he'd said as he scooped them,
mischievous, from the sack
at lunchtime. His son,

home late from school,
sits and wolfs his plate of chilli down.
That was great, he says.
What meat did you use?

The book is published by Palewell Press and I am grateful for their permission and Adam's to reproduce the above extract which is, of course, a copyright work.

Associations and marks: which is the best approach?

This blogpost has been composed by Sally Cooper, but is posted on her behalf by Jeremy

NewAssociation Limited (“NA”) provides a logo and explains its business plan which involves both (i) NA engaging in the manufacture and sale of (a variety of) goods to which the logo is attached and (ii) NA engaging in licensing to (carefully selected) others who want to use the logo.

NA has great faith in the attraction of its logo and experience in selling low-price merchandise (so T-shirts, mugs, keyrings etc). NA has no experience of selling luxury goods but (back to the power or attraction) great faith that it can find established businesses prepared to pay to use its logo. There may even be a time (says NA) when it can stop its own activity of manufacture and sale and rejoice in being an

Association devoted to allowing others to use its logo.   

I like the logo. I am sympathetic. And I need time to think.

That is, to think about “collective marks” which are marks “distinguishing the goods or services of members of [an] association [which is the proprietor of the mark] from those of other undertakings” [section 49 Trade Marks Act 1994].

I see that the UK Trade Mark Registry’s Manual of Trade Marks [Chapter 4] sets out what I learned at Law School: viz:  

“ [Certification and] collective marks differ from “ordinary” trade marks because an ordinary trade mark is one that distinguishes the goods and services of one particular trader (a single trade source) from those of other traders”.

 I am pleased that the Manual sorts out a fuzzy memory: certification marks (used to indicate that the goods in connection with which the mark is used are certified in respect of origin etc) are (says the Manual) “not used by the proprietor of the mark”: however “not used by the proprietor of the mark” isn’t a consideration in the context of collective marks.

I remind myself of NA’s long-term aspiration of being an Association devoted to allowing others to use its logo.

Do I recommend only filing an Application for an “ordinary” trade mark ? Or do I set off into the (largely unknown) territory of an Application for a collective mark ?

Fortunately (grateful thanks to IPKAT) I then read the decision of His Honour Judge Hacon in The National Guild of Removers and Storers Ltd v Derek Milner t/a Intransit Removals and Storage [IPEC: 18 March 2014, IPKat here].

From its final paragraphs, I learn two things. 

First, I see that the claimant in the case shared similar uncertainties. The judgment sets out that before filing an Application “[the claimant] professed no expertise whatever in the law of trade marks and said that [ it] was entirely guided by the IPO" / “ [the claimant] must have discussed the alternative possibilities of applying for a collective mark or a trade mark, but in any event [ it] would have gone with whatever [ the IPO] advised [ regardless of fees] “. The outcome of discussion with the IPO was that the claimant became the proprietor of an “ordinary” trade mark rather than a collective mark.

Secondly, I learn the opinion of the Judge that, since the Trade Marks Act 1994 was drafted and enacted , “the view on how a trade mark may be used has been updated and has altered”; indeed it has been updated and altered to the extent that His Honour says 

“I find it hard to think of a circumstance in which an association entitled to apply for a collective mark could not avoid the cost and inconvenience of those provisions [ section 49 Trade Marks Act 1994 / Schedule 1], and indeed evade the safeguards to the public they afford, by applying instead for a trade mark".

 I shall recommend an Application for an “ordinary” trade mark: if you disagree – there’s the Comment box!

Guardians of the Orb : Know your Certification Marks

Sally Cooper keeping us up to date, warm and well loved on the delightful ITMA lecture programme

GUARDIANS OF THE [HARRIS TWEED] ORB is the title of a talk given last evening (12 September 2013) by Colin Hulme of Burness Paull in Edinburgh – though an alternative title could well be HARRIS TWEED – A WELL-LOVED BRAND. Not wanting to spoil things for those planning to attend this talk in Leeds next Monday - still time to book, this note is limited to information that is stored away for future use (e.g. Quiz nights).

•  The Harris Tweed Certification Trade Mark is the oldest British certification trade mark still in use  
• A heroine in the history of Harris Tweed is the Countess of Dunmore who, in the 1800s, was passionate about clothing made from this tweed produced in the islands of the Outer Hebrides
•  The Harris Tweed Act 1993 established the Harris Tweed Authority (taking over from the Harris Tweed Association)
•  Part of the definition of Harris Tweed set out in the Act is that it’s “a tweed which has been handwoven by the islanders at their homes”
• 1996 was a high point in the history of Harris Tweed when 7.6 million yards were spun (think of all those jackets !)
•  Japan is currently the largest market for Harris Tweed

Colin talked further about the (legal) protections in place for Harris Tweed, not only in the United Kingdom but in other countries of the world. But what’s most important to Harris Tweed are the protections it gains from (brand) popularity and mystique. The Authority finds its best policemen are its loyal customers, and also finds that sometimes it’s appropriate to draw back from circumstances where legal action might be threatened (or taken) to protect the brand. This writer found herself recalling seminars in past times on the branding attached to successful films (say, STAR WARS) and pondering whether the time has come for “well-loved brand” to be a stand-alone term in the legal lexicon ?