Introducing Reality into Trade Mark Law
(2014) 9 Journal of Intellectual Property Law and Practice 684
8 Pages Posted: 28 Sep 2017
Date Written: September 26, 2017
The purpose of this piece is to draw attention to parallels between how European trade mark law treats certain issues pertaining to distinctiveness and recent United States scholarship on confusion. It will be argued that, while the courts require a detailed consideration of consumer perception in establishing distinctiveness, this is not always the case when it comes to establishing confusion. However, a group of US scholars have called for a consideration of the real effect of junior use on consumers as part of the confusion test. I argue that this scholarship and European developments in the field of distinctiveness share a refreshing concern for the reality of consumer perception.
Keywords: Trademark, Distinctiveness, Confusion
JEL Classification: K19, K29
Suggested Citation: Suggested Citation