It’s an unfortunate truth that IP laws are heavily stacked in favour of the man with the deeper pocket. While a small business owner may own trademarks or registered design rights, a legal battle to defend them can quickly eat up capital and in some instances result in bankruptcy. Large corporations often attempt to bully small brands into giving up their IP rights by drowning them in legal documentation. Many of these smaller brands owners find themselves in a David and Goliath situation and just don’t have the finance, time or team of lawyers required to take on a legal challenge and enforce their rights.
The latest allegations of bullying are against Bentley Motors, the luxury motor company, which is attempting to cancel a small clothing brand’s trademarks despite the brand owning these trademarks since it was founded in 1962. Christopher Lees and his father, Bob, acquired the Bentley clothing brand and its associated trademarks from the company’s founder, Gerald Bentley, in 1992. However when Bentley Motors decided to launch its own clothing brand in 2005, things got messy. Lees claims that Bentley began promoting its own clothing range despite the clothing clearly infringing Bentley clothing’s trademarks. And while he’d like to bring legal action against the motor company, the costs prohibit him from doing so. Lees even went as far as to register a new trademark ‘Bentley62′ in order to differentiate the two brands but Bentley motors opposed the registration on the grounds that it would confuse the public into believing 1962 was a special year in the history of the motor company!
Bentley Motor’s latest tactic in trying to destroy the brand is to challenge the trademark for non-use, specifically between the dates 25 March 2009 – 24 March 2014. As regular Wigs And Gowns readers will know, trademarks can be revoked if they are not used within five years of their registration or for a consecutive five year period at any time afterwards. You use it or you lose it! Lees claims that his brand’s sales in that 5 year period were £130,658, based only on sales between 25 March 2009 until 31 December 2010. He now needs to prove that the trademark was used in this period and provide as much evidence to the IPO as possible including examples of marketing campaigns, specific dates and figures.
The battle with Bentley Motors is also scaring off potential licensees, says Lees. A planned 2013 license agreement with a prominent UK fashion distributor broke down because the distributor feared legal action by Bentley Motors. Regardless of who is in the right, few firms will take the risk of getting into a legal battle with a large organisation – it’s just not worth the risk.
All is not lost, though. While many small clothing brands have been drowned in legal paperwork and forced to give up, others have, against all odds, fought the big guy and come out on top! The IPO’s decision on the non-use of the trademark is due in March 2016. Stay tuned in Wigs And Gowns for an update!