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What are prior rights and how do they conflict with trademarks?

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Brand protection

A quick guide to the interaction between prior rights and trademarks

Trademarks ("trade marks") help businesses differentiate themselves from the competition. But how do they interact with prior rights?

Prior rights and trade marks: image of a crowd in black and white

Photo by Phil Desforges on Unsplash


Disclaimer: This FAQ should not be construed as legal advice on any specific facts. The contents are intended for general informational purposes only. You are urged to consult your own solicitor on any specific legal questions you may have.
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 by Dr Martin Douglas Hendry

What are prior rights and how do they conflict with trademarks?


What are prior rights?

The term “prior rights” refers to different kinds of rights which are relevant to the current status of a legal subject in question.

Within intellectual property, there are many overlapping rights which can (and often do) conflict.

Because of this, consideration to prior rights is often very important when assessing an intellectual property matter.

Prior rights may include things such as passing off, copyrights, design rights and more.


Prior rights and trademarks


The purpose of a trademark is to identify the source of a product or service.

However, if the trademark that is sought contains someone else’s images or written material (e.g. a slogan taken from a famous book) this may fall foul of prior rights in the form of copyright.

In addition to this, a trademark may infringe other rights if, as a 3D mark it infringes upon design rights.

In addition to this, should a company be using the desired trademark in the form of a pre-existing trading name, they may have grounds for a legal position under the tort of passing off.

For the above reasons, expert legal advice is recommended when registering a trademark, avoiding the risk of an infringement claim.

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