The role of trademarks in matters of trader and consumer protection

Abstract

In today's world, there is an increasing awareness of the fact that deception of the public by the offer for sale of goods as possessing some connection with a particular trader, which they do not in fact possess, is a wrong in respect of which the trader has a cause of action against any person who is the author of, or is responsible for, the deception. Indeed. misleading indications and allegations harm competitors, insofar as they dishonestly divert competitors' clients. Furthermore, it is the consumer, as ultimate purchaser of the goods, who must also be protected by the law. By misinforming consumers, misleading indications and allegations interfere with the consumers' choice among products and, in some cases, may result in serious economic and personal harm to consumers. As was stated by Lord Justice James in the famous case 'Singer v Loog' [(1880) Ch.D.395 at p. 412], cited with approval by Lord Macnaghten in the "Camel Hair Belting" case [(1896) AC. 199 at p. 215-216]: " no man is permitted to use any mark, sign or symbol, device or other name, whereby, without making a direct false representation himself to a purchaser who purchases from him, he enables such purchaser to tell a lie or to make a false representation to somebody else who is the ultimate consumer". This fundamental principle has long been recognised by the Maltese law courts. Reference may be made on this to the "Decazole" case - 'Dott. Mallia noe. vs. Kontrollur tal-Proprjeta' Industrijali' [unreported, 20.5.1966], the facts of which were as follows: appellant nomine applied for the registration of a wordmark by the name of 'DECAZOLE', in respect of medicinals (Class 5 of the International Classification of Goods). The Comptroller rejected the application, the reason being that this would cause confusion with the mark 'DAPT AZOLE', previously registered in the same class of goods. The applicant consequently filed an appeal, requesting the appellate court to revoke the Comptroller's decision on the basis, inter alia, that if anything, it was the proprietor of the 'DAPTAZOLE' trademark registration - and not the Comptroller - who should have raised an objection to the application under section 88 which deals with opposition proceedings. Whilst allowing the appeal on the facts of this case, there being found to exist no possibility of confusion in the minds of the public between DECAZOLE and DAPTAZOLE, the Court of Appeal nevertheless dismissed the argument that the Comptroller could not object to the application 'on good grounds' under section 93, the good grounds being, in fact, deception of the public, and stated inter alia as follows: " .. huwa car illi fil-materja tax-xebh u konfuzjoni ta' trade marks il-konsiderazzjoni rilevanti huwa mhux biss Ii tigi akkordata protezzjoni lill-interessi tal-kummercjanti imma anke Ii jigi ovvjat ghat-tqarrieq tal-pubbliku "