If trademarks never expire, what’s the point of a patent?
Throwing light on the issue that’s got the industry talking
A lot of manufacturers make substantial claims for their products and although it’s not our style, many take the opportunity to rubbish a competitor’s offering. Gaining an edge is important, but sometimes that edge is gained on the back of misleading information or half-truths.
Right now, there’s a lot of debate about which is better – patent protection or trademarks. After a patent expires, anyone can legally duplicate a key blank, which has led some to claim that a trademark, granted for a ‘lifetime’, must be better.
There’s a fundamental flaw in this argument, and it’s one that ASSA ABLOY, highlighted in an article in the March/April edition of the Locksmith Journal. ASSA ABLOY is one of the world’s largest lock manufacturers and certainly knows its stuff. The problem with a trademark is that under EU law, it cannot be used to protect a functional, task-specific element of a design. If it did, the company with the trademark would have a monopoly. This is more than an arcane bit of legislation, it’s been tested in Germany’s High Court which found that a trademark is unsuitable for protecting key blanks.
Still, it sounds good, doesn’t it, lifetime protection? Coupled with a price point that’s generally lower than a patented design, it’s easy to see why some buyers think they’re getting a great deal. As the Locksmith Journal article raised such a lot of discussion, we decided to put the question to our own legal advisors. We’ll quote their answer in full:
“Unfortunately, there is no straightforward answer to your question as it concerns very specialised subject matter. On the face of it, we would be inclined to agree with the published article insofar as the “functional element” and the technology involved in the manufacture of keys or locks cannot be protected by a trade mark.
However, trade mark or design protection may still be possible options for protecting the unique shape of a particular manufacturer’s keys e.g. stylisation of the bow and stem.
So, we cannot definitively agree with the statement in the article.”
Now that raises an element of doubt and here’s the rub…. we are in the business of security, security of people, security of property, security of assets. And when it comes to security – you can’t have the luxury of doubt.
That’s why companies like ours put a lot of resources into the acquisition of patents. When patent design protection expires – we renew or release new products with design patents at considerable cost.
There is in fact a very simple way of looking at this…
Why would a manufacturer invest and renew patents – at considerable cost – when they could protect their ideas with a trademark which never runs out?
In fact, most European manufacturers of trademark key systems also continue to invest, develop and deliver new patent-protected key systems. Now why would that be? If they have a key system where protection never ever runs out, then why spend countless thousands of pounds delivering a new system that does?