TAK­ING AIM

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW -

spe­cific man­u­fac­turer, a gener­i­cised name be­comes the name for which a prod­uct is gen­er­ally known. Ex­am­ples of these are “Es­ca­la­tor” which was a valid and reg­is­tered trade­mark, but over time came to be un­der­stood as the generic term for a mov­ing stair­case or the term “Fris­bee” for a fly­ing disc. Yet, in the firearm in­dus­try (and specif­i­cally in the con­text of re­fer­ring to a cal­i­bre), trade­marks ap­pear safe from the risk which is as­sumed by the generic use thereof.

Another un­usual sce­nario in trade­mark law is the use by firearm man­u­fac­tur­ers of the well-known trade­marks of their com­peti­tors (who orig­i­nated the spe­cific cal­i­bres) in re­la­tion to their guns eg Rem, Win, H&H or Rigby ap­pear­ing on a Tikka, Mauser, Howa, Sako or CZ. En­ter­prises gen­er­ally in­cur con­sid­er­able costs and enor­mous ef­fort to mar­ket their own brands and the last thing they want to be seen do­ing is to mar­ket the brands of their com­peti­tors. Yet, this ap­pears to have be­come cus­tom­ary and es­tab­lished prac­tice in the firearm trade.

In­di­vid­u­als skilled in the trade are less likely to be con­fused. How­ever, what is the per­son who has lit­tle knowl­edge of firearms to think when con­fronted in a ri­fle cat­a­logue with de­scrip­tions such as “7X57 Mauser Nosler M48 Pro­fes­sional” or “338 La­pua Sav­age Mod 111 Long Range Hunter”? Buy­ing a ri­fle can be a daunt­ing ex­er­cise. En­sur­ing there is no con­fu­sion be­tween the name used in de­scrib­ing the cal­i­bre and the ac­tual make of firearm is a ne­ces­sity.

In this re­spect, firearms — as with sched­uled medicines — are not “over the counter” sub­stances. At least with ev­ery le­gal pur­chase, the as­sis­tance of an in-shop sales­man is avail­able not only to see the sale through and pro­vide the pa­per­work for the li­cens­ing process to start, but also to deal with en­quiries and in as far as may be nec­es­sary pro­vide clar­ity on the make, model and cal­i­bre.

So why are cal­i­bres de­scribed in this man­ner? Is it the price man­u­fac­tur­ers must pay to walk in the foot­prints of the in­no­va­tors who pre­ceded them? A likely an­swer seems to be that the orig­i­na­tor of the cal­i­bre is ac­knowl­edged, sim­i­lar to the way in which a re­searcher who writes an es­say must men­tion the source(s) of his wis­dom. This cus­tom shows that in the law of trade­marks there is no one­size-fits-all ap­proach. Each in­dus­try has its own nu­ances and es­tab­lished prac­tices which may have an im­pact on and even de­vi­ate from or­di­nary trade­mark con­sid­er­a­tions.

Pic­ture: THINK­STOCK

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