Sekhem – European Union Trademarking
This
page gives information about the trademarking of the word Sekhem in the
European Union.
Background to the information
The
need for this page lies in the successful application by Helen Belôt to
trademark the name SEKHEM within the European Union. Helen Belôt is the
Australian Energy Master who works with the Sekhem energy. There appears to
be some confusion here in the UK
and elsewhere about the implications of the trademarking approval. The
application to trademark was made after people had already been trained as
Sekhem Masters in the UK
and elsewhere in Europe. Depending upon what
was agreed at the time of the training, it is possible that some Sekhem Masters
may have rights under local contract law within the EU to use the word SEKHEM
which pre-date the trademarking approval. Additionally, some people seem to
have been given direction about the use of the word and the Sekhem logo which
is outside the scope of what has been trademarked. I am posting this page to
set out the historical record of what I know about the EU trademarking
application and my role in it, what has been trademarked, issues arising for
people connected with Sekhem and some of the relevant legal concepts. Please
note that I am not a qualified legal practitioner and that this page is
intended to give people affected by the trademarking some idea of the
questions which they should be asking rather than try to give definitive
position statements.
My involvement
I
completed my training with Helen Belôt in her combined Seichim / Sekhem / Reiki
system in September 1999. Shortly
after I completed that training, an incident happened. As a result, I decided that I did not wish
to continue to be a member of the Sekhem Association and did not renew my
annual membership when it fell due. This meant that subsequently I was not
eligible to receive any official updates on developments within the official
Sekhem Association.
In
2001 / 02, I wrote my own training manual for what I had been taught by
Helen. When I was writing it, I tried to research how other people were
working with Sekhem through internet search and found two separate sets of
references to legal actions relating to Seichim and Sekhem. The first had
taken place in Australia
some time earlier where application to trademark was made after training to
Master Level had already taken place there.
The second had just taken place in the USA where application to
trademark the name SEKHEM had been made by Helen Belôt. The application to trademark the word
SEKHEM in the USA
had been made against the background of the name being used there in a
variety of spiritual and healing contexts. There is even a registered Church
by that name there. Opposition against
the application to trademark was led by the American Energy Master Diane
Shewmaker and included a very substantial amount of documentary evidence
showing that the use of the name was already widespread in the USA
prior to the application to trademark.
The application to trademark did not succeed in its original form but
approval was given to trademark the word written in upper case letters as
SEKHEM and only when used in conjunction with the Sekhem logo. No
trademarking approval has been given in the USA for the use of the word
Sekhem in any context by itself without the logo.
At
the time, I felt it was likely that application to trademark would be made in
the UK.
I would not get to know about it because I was no longer connected to the
Sekhem Association or the Sekhem people here. Whilst I had been training,
there had been some mention of the use of trademarking as a means to prevent
people saying that they were genuine Sekhem healers when they were not. I was
concerned about any potential application to trademark because there were
already people here using the word Sekhem in healing systems for which the
context was similar to Helen’s system. Their lineages were either in what
Patrick Zeigler had been teaching or in Diane Shewmaker’s
Sekhem–Seichim–Reiki (SSR) system. There were also other people using the
name Sekhem in spiritual and healing contexts that had nothing to do with any
systems brought in by Patrick or Diane or Helen. All these people would all
be affected should application to trademark be approved.
I
kept browsing the UK
Patents Office website on a regular basis. One day the regular searching
threw up an application to trademark which had been made by Helen and which
was dated 19th December 2000. The
application was being processed by the European Union’s Office of Harmonisation for the Internal Market (OHIM) in Alicante for
trademarking of the name SEKHEM throughout the European Union. I was concerned that a lot of innocent
people who were already using the word Sekhem would no longer be able to
should the trademarking be approved and decided to oppose it.
The EU Trademark Authorisation
Procedure
Essentially,
there are two sets of procedures which are followed within OHIM once an
application to trademark is received. The first is to publish details of
applications to trademark, to receive applications of opposition to trademark
applications following publication, and to go
through due legal process to hear the oppositions to trademark in a special
trademarking Court. The second is for
OHIM itself to review the market place for existing common use of what is to
be trademarked and to identify whether there are other people and
organisations using the same or very similar logos and slogans and names to those
which are the subject of trademarking applications. My application to oppose the application to
trademark included material and arguments that were intended to feed into
both procedural routes.
EU Procedure – Application to Oppose
Application
to oppose the trademarking application can only be made on the basis of a
prior right to use the name to be trademarked. The EU law here is based upon
the Paris
Convention for the Protection of Industrial Property which most countries
have signed up to.
·
I argued that I had a right to use the
word Sekhem prior to the date of application to trademark. The EU did not accept this and ruled that
Helen Belôt had a prior right over the word. Prior right was determined to be based upon
the earliest date of use or of ownership of the word, not the date of
application to trademark.
·
I argued that I had a contractual right
to use the work Sekhem which had already been given to me by Helen Belôt prior
to the date of application to trademark and that this would be affected by
any approval of the trademarking. The Court determined that approval to
trademark would be given on the basis of evidence of earliest date of use or
of ownership of the word and that any contractual rights given after the
earliest date would not influence the approval of the application to
trademark. The Court advised that if I had a contractual right to use the
word that pre-dated any trademarking approval, the remedy for any attempt by
the trademark holder to restrict my use of the word would be to seek
determination of my right to use the name at an English Court under English
contract law.
·
I submitted correspondence from a number
of other people using the word Sekhem in the European Union. The Court was
not able to accept this evidence for the application to oppose procedural
route because these people had not given me power of attorney to represent
them.
·
Nobody else within the European Union
submitted an opposition to the trademarking.
EU Procedure – OHIM Review of the Market Place for
existing common use
·
I presented evidence of the spiritual
nature of the word Sekhem and argued that it was not appropriate for such a
word to be trademarked. There was no basis in EU Law to consider this
argument so it was rejected.
·
I presented evidence of over two hundred
examples where the word Sekhem was being used in the public domain. There
were examples from nearly every country within the EU. One of the tests that
OHIM makes to assess whether there is already existing common use of
something to be trademarked is to find at least two hundred examples of the
common usage.
·
One of the bases in law for determining
whether a word is suitable for approval to be trademarked is its
distinctiveness which separates it and makes it immediately recognisable from any words in common usage. I presented
the EU with a lot of evidence showing the use of the word Sekhem in various
contexts and argued that the act of writing it in upper case letters did not
give sufficient distinctiveness to justify approval to trademark. The Court
did not accept this argument.
·
There is a legal concept in trademarking
law called ‘passing off’. This means using very similar names or logos for
products and services for which there is already a registered trademark. For
example, we are all familiar with the trademarked Coca-Cola logo. If another
cola manufacturer chose to bottle the drink in similarly shaped bottles and
with a similarly designed logo but just changing the name slightly to
Coca-Kola, in law this would be seen as an attempt to copy the Coca-Cola
product and to ‘pass it off’ as the Coca-Cola product. I made representation to the Court that
even though I might not have found two hundred examples of the word Sekhem
spelled in upper case letters, I had found sufficient examples of the word
for one of the product classes for which approval to trademark was being
sought, namely the category which included health care services, for there to
be the potential of a legal quagmire in terms of the ‘passing off’ concept in
respect of existing users of the name if Helen Belot’s application to
trademark were approved. The Court seemed not to pick up this point and not
to take it into account in their decision to approve the trademarking.
·
I advised that should there be a change
to what was to be trademarked so that there would be sufficient
differentiation between the common uses of the word Sekhem and what was
intended to be trademarked, I would withdraw my opposition. I suggested that
a suitable option might be to register the trademark as Helen Belot SEKHEM.
This suggestion was not accepted by the trademark holder.
What has been trademarked
Helen Belôt made
application for the word SEKHEM to be given trademark status in certain
product categories and the EU has now given approval for the following
categories. These are internationally recognised classes for the purposes of
trademarking under the Paris
Convention. The EU trademark reference is #E2006393. It is valid in the
following official product categories:
·
Class 03: Bleaching preparations and
other substances for laundry use; cleaning, polishing, scouring and abrasive
preparations; soaps; perfumery, essential oils, cosmetics, hair lotions;
dentifrices.
·
Class 33: Alcoholic beverages (except
beers).
·
Class 42: Health care services
inclusive of medical clinics, naturopaths; massage; medical assistance;
pharmacy advice; physiotherapy; rest homes; sanitoriums.
Although
I had originally believed that the Sekhem logo had not been trademarked, I
was incorrect about this. In September
2007 I became aware that the logo had been trademarked under EU trademark
reference #E002006773 (click here
to search for #E002006773).
What has not been trademarked
As
far as I am aware, approval to trademark has not been granted for the
following:
·
Any use of the word Sekhem
for product categories other than Classes 03, 33 and 42.
Territorial Jurisdiction of the EU trademarking approval
In
general, the EU does not have legislative jurisdiction over what are
recognised as the Overseas Countries and Territories.
http://en.wikipedia.org/wiki/Special_member_state_territories_and_their_relations_with_the_EU
gives details of the OCTs. If you live in one of these territories please
check to see whether the EU trademarking approval for SEKHEM applies to where
you live. As far as I am aware, close to home here in the UK, the trademarking approval does not apply
to the Isle of Man, Jersey and Guernsey.
The
trademarking approval extends to countries which joined the EU after the date
of the approval and which will join the EU in the future. If the EU approved
trademark is already trademarked in a country joining the EU, the local
trademark owner may apply to a local Court to retain ownership of the
trademark in the territory of the joining country. Details of all of this can
be found on OHIM website at http://oami.europa.eu/
.
Term of the trademarking approval
The
trademarking approval was granted for the period up to December 2020. Under
European Union law, application to renew the trademarking approval at the end
of this period may be made if the trademark owner can show continued usage of
the trademark during the current term of trademarking approval.
My position
When
I was training with Helen, I sought clarification from her that we had an
agreement for myself and all my students and their
students down through my teaching line in perpetuity to teach her system and
to use her teaching materials and logo. This she confirmed. This means that a
contract to that effect exists in English law. There were no conditions
attached. Although I do not usually write Sekhem in upper case letters
anyway, should there ever be any difficulty between Helen and myself or
between Helen and anybody within my teaching line, it would be best if the
matter went to Court for determination.
As far as I am aware at this stage, anybody in my teaching line is
eligible to use the word Sekhem written in whatever way they wish and in
whatever product categories they wish.
The position of other Sekhem healers in the UK
A
trademark owner has the legal right to control the use of the trademark. If
permission to use what has been trademarked was given at a date prior to the
date of trademarking approval and for which money changed hands, there could
be a contractual right to use the trademarked word which pre-dates the
trademarking approval. The following gives an indication of some of the
issues that would need to be considered in coming to a view about the
existence of pre-dated contractual rights in respect of SEKHEM.
If
you have a SEKHEM practitioner or Master or Master Teacher certificate, it
would be necessary to understand what contractual right was given to use the
word SEKHEM by Helen Belôt to the person at the top of your lineage tree
immediately below her. It would also be necessary to understand the
contractual rights passed down the lineage tree from teacher to student. If
Helen gave permission for the word SEKHEM to be used without restriction and
this has been passed down the lineage tree without amendment, there could be
a contractual right all the way down through your part of the lineage to use
the word SEKHEM without restriction. If somebody part way down the lineage
tree has not followed restrictions imposed by Helen at the top of the tree,
he or she might have been creating terms and conditions in a contract which
he / she had no right to create. In such a situation, the law regarding
misrepresentation might be relevant. In simple conceptual terms, this would
be likely to require some recompense from the person who had misrepresented
to the person who had paid for the training.
In
the situation where no written contracts were created at the time of training
in SEKHEM, a Court would consider the following in the event of dispute. In
English law, verbal statements and agreements regarding specific (or express)
terms and conditions at the time of agreeing a contract are accepted as
evidence of contract. If there are no witnesses to any verbal statements and
agreements, these can be difficult to prove in Court. In the event of
difficulty here, a Court would seek to construe what was intended
contractually when money changed hands. In other words, the Court would seek
to draw up what the contract was intended to be and then make judgement about the dispute accordingly. Additionally, a
Court would be likely to make determination on implied terms and conditions
in a contract. Implied terms and conditions are those which are not expressed
specifically but can reasonably be assumed to apply. In the case of SEKHEM,
it could reasonably be assumed that the granting of a certificate without any
restrictions saying that somebody is certified as a Master Teacher in SEKHEM
implies that the person had been given approval to practice and to teach
SEKHEM. In the case of SEKHEM, custom
and practice in the energy healing sector where attunements and teaching pass
down a lineage might be considered to imply that the issuing of a SEKHEM
Master or Master Teacher certificate without restrictions represents approval
given to practice and to teach SEKHEM successively from teacher to student
down through the lineage tree.
If
you are teaching SEKHEM, it would be advisable to work your way up through
your lineage tree back to Helen to understand what contractual arrangements
were made with each teacher regarding the use of the word SEKHEM together
with any restrictions imposed. If for any reason it would appear that you do
not have a contractual right to use the word, the trademark owner has the
right in law to ask you to refrain from using the word. Additionally, you
could then also have difficulties with any person that you have trained
because you would not have had the legal right to use the word SEKHEM. This
could have financial consequences for you.
One
of the difficulties of the trademarking situation is that the application to
trademark took place after SEKHEM teachers had already been trained. I would expect that Helen would have taken
legal advice on the issues affecting such teachers and should be able to advise on their positions so that all sides can operate
within the law in case they are not able to come to mutual agreement on the
way forward. It would be advisable, therefore, to contact Helen direct to
discuss your position. In law, Helen
would be within her rights to require that any contractual restrictions
should be followed but would not be able to require any additional
restrictions outside of what already exists in contract.
If
you are one of the people who has been telling other people that they cannot
use the word SEKHEM, you need to ensure that you know what contractual rights
have been passed down any branches of the lineage tree to the person who you
are communicating with. You also need to be mindful of exactly what has been
trademarked. It is not correct to tell people that the word in any
combination of upper and lower case letters unless written as SEKHEM is
trademarked. It is not correct to tell people that the logo has been
trademarked. You also need to be acting upon the authority of the trademark
owner.
The position of other Sekhem healers elsewhere in the EU
It
would be advisable for other Sekhem healers elsewhere to check with their
local national legislation in case your national laws have any similarity to
what I have outlined above for UK based healers.
Right of appeal against the trademarking
If
something has been trademarked which somebody had a right to prior to the
trademark owner, it is possible to follow an appeal procedure which will
result in a revocation of the trademarking approval by the EU trademarking
Court. If anybody believes that they have a prior right to use the word
SEKHEM as has been trademarked, they should contact OHIM.
Future actions by myself
Unless
anything unforeseable happens, I do not think that
there will be any future action on this matter by myself. If anybody needs to
discuss this matter with me, please feel free to contact me. Alternatively, people in the UK
could go to their local branch of the Citizens Advice Bureau for some
preliminary legal guidance on this matter. There is not likely to be any
specific case law on such matters within the energy healing sector but it
should be possible for you to be given some advice of a more generic nature.
The CAB website is at http://www.citizensadvice.org.uk/
.
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Originally
drafted 24th November 2006 and updated 22nd February 2008.
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