When might I need a period of grace and will the Traffic Commissioner (TC) grant it?
If an operator cannot meet financial standing or their Transport Manager leaves, the TC must ordinarily revoke the operator’s licence. There is, however, a “period of grace” available which allows the operator’s licence to continue and provides time for the operator to address and rectify the issue.
The operator must apply for a period of grace and this would be granted entirely at the discretion of the TC — they will only grant it if they think it will be worthwhile allowing some time to re-establish the relevant requirement.
They therefore need as much detail as possible about the steps being taken to rectify the issue.
For example, the TC will need sufficient information to understand how the transport activities will be managed without a Transport Manager so they can be satisfied road safety will not be compromised, as well as details of the plans for recruiting a replacement in the role.
If the period of grace expires and the requirement has not been re-met and/or there has been no application for an extension (where one might be available), the TC has to revoke the operator’s licence — often without further reference to the operator and with immediate effect.
Why should I clear and file a trade mark?
Any business considering launching a brand should prioritise clearing and registering their mark beforehand.
Think of Twitter, which sold for $44 billion — a simple idea, but it succeeded largely because of its branding.
Brands are highly valuable assets, so steps must be taken to clear, register, monitor and enforce such rights in order to protect and increase their value.
Trade marks provide a monopoly right to prevent others using the mark for the products and services covered by the registration. If someone uses a similar mark for similar products or services, you can take action to stop the use.
Even if you have been using your brand for some time, it is still of significant value to register your trade mark. If you do not have a trade mark, the default position when going after copycats is to rely upon an action of passing off, for which you need to evidence your rights; this can be difficult, time-consuming and costly.
A trade mark infringement claim is more straightforward as your registration is prima facie evidence of your rights.
Even if you have been using your brand for some time, it is still of significant value to register your trade mark
Owning a trade mark attracts many other benefits. It can act as a deterrent against copycats, you can use the ® symbol indicating that your brand is protected and, by marking your brand in this fashion, you are communicating that you have a registration and that you intend to enforce your rights.
If you allow third parties in your field to use similar marks, you are diluting the value of your brand.
Before filing a trade mark you should carry out clearance searches, which will identify the likelihood of receiving objections from third-party earlier rights-holders, or refusals from the relevant intellectual property office.
The clearance search will also be indicative of whether your use could give rise to potential third-party infringement claims being brought against you.
A major risk with infringement claims is not only the demand that you rebrand, but the requirement to make payment to the earlier rights-holder to financially compensate them for your infringing activities.
This may include divesting your business of the profits made by your use of the brand. Clearing a mark therefore allows you to confidently invest in your brand.
[Answers by Laura Hadzik, Partner; Lucy Marlow, Partner – JMW Solicitors]
