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.