As was discussed at the time of application, Specsavers have recently obtained a trade mark registration for SHOULDVE and SHOULD’VE at the UKIPO; this being the first element of their slogan should’ve gone to Specsavers. No strangers to precedent-setting case law and decisions, Specsavers have now found themselves in the press as many have sought to assess the ramifications of this development for brand owners.
Several outlets have suggested that this registration will mean that other parties “will not be able to use that form of words in their marketing”. Some have gone so far as to suggest that this registration signifies an overhaul of the UK Trade Mark system, wherein companies may own terms in common parlance, by way of “a rampant corporate takeover of our public language”. The Specsavers registration seems to have been reported, in part at least, as a symbol of the privatisation of language.
This portrayal of the legal situation is not accurate, and the media coverage outlined above has come under fire from IP Counsel for Specsavers, Antony Douglass. As reported in the World Trademark Review, his complaint is that the “trademark [registration] does not impact on anybody’s use of the term ‘Should’ve’ other than preventing competitor businesses from using it to mislead the public into thinking they are connected with us”. He cites this clarification as being “contrary to recent inaccurate commentary”.
Whilst it may seem surprising that a brand owner can obtain any kind of monopoly in a word like this, the idea that a registration enables a brand owner to own a word outright is inaccurate. A registration can only be used to prevent use of a mark as a brand to indicate the origin of goods or services. It cannot prevent descriptive use and other ‘non-brand’ types of use. This registration is potentially a useful part of Specsavers’ trade mark armoury, but it “shouldn’t’ve” any impact on the public’s ability to use the word in normal parlance.