Retailer apologises for misuse of Harris Tweed mark

The BBC is reporting that fashion chain Zara has had to apologise after misusing the mark “Harris Tweed” in relation to the description of a product on its website.

Harris Tweed
“Harris Tweed” is a registered trade mark of the Harris Tweed Authority (HTA), self-styled as the “custodians of the world famous Orb trademark which appears on every length of tweed that has been stamped as genuinely handwoven in the Outer Hebrides of Scotland.”

The HTA was established under an Act of Parliament in 1993 to promote and maintain the authenticity, standard and reputation of Harris Tweed. The HTA’s objects also include preventing the sale as Harris Tweed of material which does not fall within the definition set out in the Act. It was set up to prevent producers outside of the Western Isles (and using non-traditional production methods) from cashing in on the goodwill in the Harris Tweed name.

Whilst the HTA has statutory powers in the UK to take action (including the right to obtain court orders against people using the term in relation to material that does not fall within the statutory definition), those rights do not extend outside the UK.

For that reason, the HTA’s community and UK trade marks (the original trade mark was registered in 1909) are obviously an important part of its armour in preventing the sale of material that is not “Harris Tweed”.

The Harris Tweed mark is, by its nature, very descriptive, in that it includes a geographic indicator and the name of a commonly produced type of fabric. Indeed, it is quite unusual for a term like this to be granted registered trade mark protection – to do so you need to show that the mark has distinctive character at the time of registration.

The problem with trade marks that are descriptive or used to describe goods or services that dominant in their respective market is that you have to fight quite hard to ensure that they are not subject to genericide. That is – that they lose their distinctiveness and, therefore, potentially their registered trade mark protection) because the mark is commonly used in relation to generic products.

This can be a particular issue if you are very successful and your product becomes ubiquitous. For example, people use the term “hoover” to describe a vacuum cleaner, a “biro” to describe a pen, and a “thermos” to describe a vacuum flask. (this page on Wikipedia has a list of trade marks that are in generic use/subject to genericide).

Google™ it and you’ll see what I mean.

This is why, as long ago as 2003, Google started taking action to protect its brand against genericide.

Back to Zara and Harris Tweed
In this case, it appears that Zara’s misuse of the term was not deliberate.

Indeed, it most probably arose because the person who created the description was unaware that the term “Harris Tweed” was a trade mark, and not a description that could be applied to any type of tweed in the syle of Harris Tweed (cf paisley pattern or argyle pattern, which are not registered trade marks).

That in itself explains why owners of registered trade marks that are descriptive and at risk of genericide have to be aggressive in asserting their rights.

PS there is a good history of the Harris Tweed trade mark on this website.

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