Dilution by Blurring in the European Union and United States of America - A Comparative Analysis
Posted: 2 May 2010
Date Written: July 1, 2006
This PhD thesis seeks to answer three questions:
1. What are the justification(s) for providing protection against dilution by blurring and can a definition of dilution by blurring be built based on those justification(s)? 2. Which factors which have been used by the courts or other tribunals in the European Union and United States to test for dilution by blurring, and can a certain test for blurring can be built from those factors? 3. Are the factors that have been used to test for blurring suitable for testing for blurring, as defined by reference to justification(s) for offering such protection?
The thesis concludes that dilution by blurring can be defined and justified by reference to the need to protect the ability of a trade mark to distinguish the goods of its owner from those of other undertakings (the ‘origin’ or ‘essential’ function). Likewise, the case law on dilution by blurring in the jurisdictions surveyed is, when taken as a whole, sufficiently developed for a certain test for that type of harm to be formulated. However, none of the factors identified as having been used by the courts are suitable for testing for dilution by blurring as defined by reference to trade mark function, nor are there any other factors which obviously lend themselves to testing for blurring as defined in this way.
Keywords: trademark, dilution, blurring, Europe, United States, trade mark, intellectual property
JEL Classification: K00, O34
Suggested Citation: Suggested Citation