Fed up with increasing use by advertisers of their famous “Love Hearts” and no doubt far from satisfied with the limited protection afforded them by the law of passing off, Swizzels applied to register the cult sweet as a trade mark.
Who: Swizzels Matlow Ltd.
When: Spring 1999
Where: UK Trade Marks Registry
Fed up with increasing use by advertisers of their famous "Love Hearts" and no doubt far from satisfied with the limited protection afforded them by the law of passing off, Swizzels applied to register the cult sweet as a trade mark. But when the surface of each sweet might carry any one of umpteen phrases, what could they meaningfully apply to register?
The solution (they thought) was to register not the surface of any particular Love Heart, but a verbal description viz: "a circular compressed tablet bearing a raised heart outline on both flat surfaces and containing within the heart outline on one side any one of several different words or phrases."
The Registry thwarted this ingenious strategy, holding the words insufficiently precise to qualify as a "sign capable of being represented graphically which is capable of distinguishing goods…of one undertaking from those of other undertakings." (The Trade Marks Act 1994 definition of a trade mark). Even giving the exact dimensions of the sweet did not help, the Registrar said, as to equate to a "graphic representation" the description had to indicate precisely all dimensions and shapes including those of the heart.
Why this matters:
One can sympathise with Swizzels, but as it is dealing with what are effectively monopoly rights, the Registry has of necessity to take a strict line on what can be registered. Perhaps Swizzels should consider registering each and every one of the Love Hearts family, hang the expense, but there are of course the other rules forbidding registration of shapes either resulting from the nature of goods or giving substantial value to them. Expect this one to run and run!