Manatapu enjoy earlier rights
Manatapu have existed in Malta (an EU member state) since 2012, and have been active in producing music, selling music, and performing music live not only in Malta but in other countries too ever since 2012. Maltese law, in terms of the Commercial Code (Chapter 13 of the Laws of Malta) gives Manatapu rights over their name, and protects them from having others use that name. This is a right which is recognised by EU law and laws all over the world (in the UK this is called the law of passing off, and there are similar concepts in all other countries). I quote from the Commercial Code:
Traders shall not make use of any name, mark or distinctive device capable of creating confusion with any other name, mark or distinctive device lawfully used by others, even though such other name, mark or distinctive device be not registered in terms of the Trademarks Act, nor may they make use of any firm name or fictitious name capable of misleading others as to the real importance of the firm.
Manatapu therefore enjoy rights in all they were active in since 2012 under this law: producing music, selling merchandise, selling tickets to shows, performing live, selling music and all that a band does. Since Manatapu exist before any other claimant’s registration, and have been using the name since 2012, they enjoy these rights under Maltese law.
Manatapu TM in Malta
Manatapu holds a valid and registered trademark in Malta for the name and logo of “Manatapu.” This trademark was officially applied for in Malta in 2015 and takes precedence over any other trademarks related to the band’s name. Trademark link: https://ips.gov.mt/NR/TM54584
This trademark also predated by quite some years the (bad faith) application filed by another claimant (Jorge Bo Smid).
Apart from that, nobody who registers the same name as a trade mark can ever accuse Manatapu of trade mark infringement because what Manatapu own is known as a “pre-existing right” from their use in Malta and beyond. I quote from Maltese law which is the same as in the EU and other countries in the world:
A trademark shall not entitle the proprietor (i.e. claimant) to prohibit a third party (all of us) from using, in the course of trade in Malta, an earlier right, if the right is recognised by law and if, or to the extent that, its use is protected by virtue of any rule of law.
(b) For the purposes of this sub-article an “earlier right” means an unregistered trademark or other sign continuously used in relation to goods or services by a person or his predecessor in title from a date prior to whichever is the earlier of – (i) the use of the first-mentioned trademark in relation to those goods or services by the proprietor or his predecessor in title; or (ii) the registration of the first-mentioned trademark in respect of those goods or services in the name of the proprietor or his predecessor in title.
Apart from that Maltese and EU law recognise that there is no infringement of a trade mark if a person refers to something by its brand name (this was upheld by the CJEU in BMW v Deenik which allowed the respondent to use the BMW name to refer to his services in BMW cars without needing BMW permission). This rule is found in the EU trade mark Regulation 2017/1001:
“14.1 An EU trade mark shall not entitle the proprietor to prohibit a third party from using, in the course of trade:
(c) the EU trade mark for the purpose of identifying or referring to goods or services as those of the proprietor of that trade mark, in particular, where the use of that trade mark is necessary to indicate the intended purpose of a product or service, in particular as accessories or spare parts.”
This is repeated in Article 16 of the Maltese trade mark law, Chapter 597 of the Laws of Malta:
16. A trademark shall not entitle the proprietor to prohibit a third party from using, in the course of trade:
(c) the trademark for the purpose of identifying or referring to goods or services as those of the proprietor of that trademark in particular where the use of the trademark is necessary to indicate the intended purpose of a product or service in particular as accessories or spare parts.
Any venue or festival always referred to the Manatapu trade mark belonging to the band which is based in Malta which enjoy a pre-existing right to that being claimed by the claimant.
One must also note that the claimant’s EU trade mark does not cover “live performance” under class 41 because this was successfully removed by Manatapu’s opposition to the mark. So, he has no basis there. Furthermore, when festivals tickets, they do so under their brand and not Manatapu.
Manatapu never infringed Jorge Bo Smid’s rights since he obtained rights a) in bad faith, and b) much after Manatapu were making use of the name Manatapu in Malta to refer to Manatapu.t the Manatapu name.
Mana is a supernatural force in a person, place or object.
Mana goes hand in hand with tapu, one affecting the other.
The more prestigious the event, person or object, the more it is surrounded by tapu and mana.
Mana is the enduring, indestructible power of the atua and is inherited at birth, the more senior the descent, the greater the mana.
The authority of Mana and Tapu is inherited and delegated through the senior line from the atua as their human agent to act on revealed will.
Since authority is a spiritual gift delegated by the atua, man remains the agent, never the source of Mana.
Mana gives a person the authority to lead, organise and regulate communal expeditions and activities, to make decisions regarding social and political matters.
A person or tribe’s Mana can increase from successful ventures or decrease through the lack of success.
Almost every activity has a link with the maintenance and enhancement of Mana and Tapu.
Animate and inanimate objects can also have Mana as they also derive from the atua and because of their own association with people imbued with Mana or because they are used in significant events.
A person, place or thing is dedicated to an atua and is thus removed from the sphere of the profane and put into the sphere of the sacred.
It is untouchable, no longer to be put to common use.
Tapu was used as a way to control how people behaved towards each other and the environment, placing restrictions upon society to ensure that society flourished.
The extensions of tapu are the restrictions resulting from contact with something that is intrinsically tapu.
A person is imbued with Mana and Tapu by reason of his or her birth.
People are Tapu and it is each person’s responsibility to preserve their own tapu and respect the Tapu of others and of places.
Under certain situations people become more Tapu, including women giving birth, warriors travelling to battle, men carving (and their materials) and people when they die.
