the proprietor as a requirement for permitted use. As Lord Nicholls explained in Scandecor:35
"A trade mark is a badge of origin or source. The function of a trade mark is to distinguish goods having one
business source from goods having a different business source. It must be 'distinctive'. That is to say, it must be
recognisable by a buyer of goods to which it has been affixed as indicating that they are of the same origin as
other goods which bear the mark and whose quality has engendered goodwill: see GE Trade Mark [1973] RPC
297, 325, per Lord Diplock."
This exposition accords with the position in our law.36 Further, he said:37
"Although the use of trade marks is founded on customers' concern about the quality of goods on offer, a trade
mark does not itself amount to a representation of quality. Rather it indicates that the goods are of the standard
which the proprietor is content to distribute 'under his banner': see Laddie J, in Glaxo Group v Dowelhurst Ltd
[2000] FSR 529, 540541. . . . Thus, in relying on a trade mark consumers rely, not on any legal guarantee of
quality, but on the proprietor of a trade mark having an economic interest in maintaining the value of his mark. It
is normally contrary to a proprietor's selfinterest to allow the quality of the goods sold under his banner to
decline."
[39] Put differently, although in the ordinary course of events a trade mark owner would wish to ensure the
consistency of the quality of the goods or services marketed under its mark, nothing prevents the owner from
providing under one mark goods or services of differing, inconsistent or poor quality. The customer has in the
event of the purchase of a substandard product or the provision of substandard services no redress based on
trade mark principles. Market forces may eventually exact their toll. All a trade
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mark does, in the words of Laddie J in Glaxo,38 is to identify the enterprise that is responsible for the quality
of the goods or services. Again Lord Nicholls:39
"This approach accords with business reality and customers' everyday expectations. Customers realise there is
always the prospect that, unbeknown to them, the management of a business may change. To confine the use of a
trade mark to the original owner of a business would be to give the concept of a business origin or business source
an unrealistically narrow and impractical meaning. Of course, the new management, the new owners, may not
adhere to the same standards as the original owner. But the risk of an unannounced change of standards is ever
present, even when there has been no change in management.
View Parallel Citation
An owner may always decide to change his quality standards. As already noted, customers rely on it being in the
owner's selfinterest to maintain the value of his mark. The selfinterest of the owner of a trade mark in
maintaining its value applies as much to a purchaser of the mark as it does to the original owner."
[40] Although Scandecor (supra) was concerned with an exclusive licence, its conclusion that the current UK Act
countenances bare licensing, ie, licensing without quality control, applies in my view to all licences under our
current Act. As Lord Nicholls explained:
"Customers are well used to the practice of licensing of trade marks. When they see goods to which a mark has
been affixed, they understand that the goods have been produced either by the owner of the mark or by someone
else acting with his consent."40
"For their quality assurance customers rely on the selfinterest of the owner. They assume that if a licence has
been granted the owner can be expected to have chosen a suitable licensee and imposed suitable terms. They
also assume that during the currency of any licence the licensee, as well as the owner, is likely to have an interest
in maintaining the value of the brand name. Customers are not to be taken to rely on the protection supposedly
afforded by a legal requirement that the proprietor must always retain and exercise an inherently imprecise
degree of control over the licensee's activities."4 1
[41] To revert to Daniels J's ratio, namely that bare licences may lead to loss of distinctiveness of a trade mark, the
answer appears to me to be factual: did the grant or exercise of a bare licence in the circumstances of a
particular case cause a loss of distinctiveness? If the answer is in the affirmative, the appropriate remedy
would be an application for the expungement of the mark on that ground. In this case there was no evidence
of loss of distinctiveness because of the grant of bare licences (although there is reason to believe that there
was such a loss) and consequently the objection of nonuse could not have been upheld on this ground.
[42] That brings me to the last question relating to this issue: did such use as there was amount to bona fide use?
The concept of bona fide use has been the subject of a number of judgments, also of this court,42 and the
area
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need not be traversed again. For present purposes it suffices to say that "bona fide user":
"means a user by the proprietor of his registered trade mark in connection with the particular goods in respect of
which it is registered with the object or intention primarily of protecting, facilitating, and furthering his trading in
such goods, and not for some other, ulterior object."43
This test is similar to that proposed in an opinion by the Advocate General in the European Court of Justice in
the Ansul case:44
"When assessing whether use of the trade mark is genuine, regard must be had