Nathan Nerd is 18 years old, and is developing a music “app” for smart ‘phones and tablet computers.
His “app” will be used to match music playlists from existing “apps” on people’s devices, so that all their favourite music is accessible from just one “app”, as opposed to having to use different “apps”, such as Spotify, Itunes or Soundcloud.
Nathan is having difficulty with some of the coding aspects of the “app”, and asks his friend, Tommy Rotten, for help. As he provides Tommy with details of the problematic code, Nathan says, “keep this under your hat; don’t let anyone know about this, as I think this could make me a million!”.
Tommy solves Nathan’s problem, and Nathan releases the “app”, which he calls “Snapp!”. He files his own UK Trade Mark applications for both the word “Snapp!” and for the colour purple, which will be the colour of the “app” button as it appears when downloaded onto a smart ‘phone or tablet device. Both applications are for “computer software for collating and downloading music” under Class 9.
The application for “Snapp!” proceeds to registration. The application for the colour purple is subject to an objection by the Intellectual Property Office (IPO), who raised the following objections:-
“The application is provisionally refused for Class 9 software, as there is an objection under Section 3(1)a of the Act. This is because the mark consists exclusively of the colour purple, and as such is a sign which does not satisfy the requirements of section 1(1).”
Nathan has also become aware that his friend Tommy has also launched an “app” for matching music playlists, and that the name Tommy is using for this “app” is “Snapper”.
You are required to advise Nathan as to the following issues:-
a) How the IPO’s objection to the application for purple might be overcome.
b) What action Nathan might be able to take against Tommy’s use of “Snapper”, given that his own mark “Snapp!” is now registered.
c) Whether any action can be taken against Tommy for having obviously used Nathan’s software to develop his own “app”.
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