The Consumer as the Empirical Measure of Trade Mark Law

Weatherall, Kimberlee

doi:10.1111/1468-2230.12242

Cited by 7 publications

(10 citation statements)

References 6 publications

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“…38 In Kimberlee Weatherall's view, it is unlikely that consumers' memories are reflecting the hypothetical state of the EU consumer's mind. If a mark is famous, consumers' memories may be perfect (Weatherall (2017), p. 75; fn. 113).…”

Section: Infringement Analysis In Confusion Cases: Imbalancedmentioning

confidence: 99%

The Many Faces of the Average Consumer: Is It Really So Difficult to Assess Whether Two Stripes Are Similar to Three?

Anemaet

2020

IIC

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This article shows the necessity of including policy concerns, in particular the need to keep signs available for competitors, when assessing a likelihood of confusion. In the Adidas/Marca case, the CJEU ruled that the need to keep signs freely available for other economic operators cannot be a relevant factor in the infringement analysis. This is particularly problematic in relation to appealing signs such as stripe motifs. These signs not only serve as a source identifier, but also appeal to consumers and therefore give trademark owners an advantage over competitors on the market. In order to offer sufficient room for the concerns of trademark owners and competitors (and ultimately also consumers), it is essential to apply normative corrections not only in favour of trademark owners but also in favour of competitors. The current analysis of confusion in EU trademark law already contains a normative correction in favour of trademark owners. From an empirical perspective, the more distinctive the trademark, the less likely consumers are to be confused when confronted with a similar sign. The CJEU, however, assumes that consumers are more likely to be confused when confronted with signs that are similar to a highly distinctive trademark. In a trademark system where this normative correction is possible in favour of trademark owners, similar steps should be taken to give sufficient weight to the interests of competitors. In this light, this article concludes that the Adidas/Marca decision should be overruled.

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Section: Infringement Analysis In Confusion Cases: Imbalancedmentioning

confidence: 99%

The Many Faces of the Average Consumer: Is It Really So Difficult to Assess Whether Two Stripes Are Similar to Three?

Anemaet

2020

IIC

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“…The role of empirical evidence in EU trade mark law is uneasy and controversial (Weatherall, 2017, p. 59). Consumer perception is key when considering whether a sign could be a source indicating signal (for subsistence) or if a mark is too close to another and causes consumer confusion (for infringement; Gangjee, 2017, 1).…”

Section: The Average Consumer's Perception Of Designers' Brandsmentioning

confidence: 99%

“…However, “the fact that the confusion test is often applied as a series of abstract, even formulaic, factors drives a wedge between the inter partes registrability/infringement action and the reality of consumer perception” (Fhima, 2014, p. 686). There is a theme in European decisions that discard the validity of some types of empirical evidence as “not relevant to determining the response of the average consumer to a mark, because the legal test relates to a hypothetical, rather than a real consumer, whose responses are assessed as a normative matter” (Weatherall, 2017, p. 66).…”

Section: The Average Consumer's Perception Of Designers' Brandsmentioning

confidence: 99%

“…This assumption is ultimately a normative adjustment of the perception of trade marks by consumers. There is strength in the contrary argument that actually a “trade mark that is well known to consumers is more likely to be remembered, and it is, therefore, less likely that consumers will have an 'imperfect recollection' when confronted with a similar trade mark” (Anemaet, 2020, p. 193; see also Weatherall, 2017, p. 75).…”

Section: The Average Consumer's Perception Of Designers' Brandsmentioning

confidence: 99%

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Fashion designs and brands: The role of the informed user and the average consumer

Frabboni

2020

World Intellectual Property

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The notions of the informed user and average consumer occupy centre stage in design and trade marks disputes. The current European Union legal framework exposes a tension between these notions as legal constructs informed by normative objectives, and the need to connect them with the business reality of design and trade mark practice. This article investigates how litigation concerning fashion design and brands addresses this tension and shapes the definition and application of legal tests for the informed user and the average consumer. It analyses key criteria that determine who these notional persons are, and how those criteria are applied when performing assessments that

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“…Some, but not all of these aspects of context can be controlled by trade mark and related laws aimed at preventing consumer confusion. 2 The present experiments focus on a quintessential example of a trade mark -a product name -and one aspect of context, namely brand claims, for example, BYoplait makes dairy fun.T he role of context in recognition has not always been recognized in trade mark law, where there is an active debate as to how cognitive psychology and experimental methods can better contribute to how we assess or predict consumer responses for legal purposes (Dinwoodie & Gangjee, 2015;Weatherall, 2017). Courts determine trade mark infringement by reference to whether a Bhypothetical reasonable consumer^3 would have been confused into thinking a competing product might have been produced by the same manufacturer.…”

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confidence: 99%

Recognition in context: Implications for trade mark law

et al. 2017

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Context effects in recognition have played a major role in evaluating theories of recognition. Understanding how context impacts recognition is also important for making sound trade mark law. Consumers attempting to discriminate between the brand they are looking for and a look-alike product often have to differentiate products which share a great deal of common context: positioning on the supermarket shelf, the type of store, aspects of the packaging, or brand claims. Trade mark and related laws aim to protect brands and reduce consumer confusion, but courts assessing allegations of trade mark infringement often lack careful empirical evidence concerning the impact of brand and context similarity, and, in the absence of such evidence, make assumptions about how consumers respond to brands that downplay the importance of context and focus on the similarity of registered marks. The experiments reported in this paper aimed to test certain common assumptions in trade mark law, providing evidence that shared context can cause mistakes even where brand similarity is low. Keywords Recognition memory . Context . Global matching . Trade mark lawContext effects in recognition memory have been studied for over 40 years. 1 The role of context in a match of a test probe with memory played a prominent role in the development and testing of the Global Matching Models (Clark & Gronlund, 1996;Humphreys, Pike, Bain, & Tehan, 1989). Context effects continue to be of interest in dual process theories of recognition, with contextual information potentially playing a role in both the familiarity and recollection components of the theories (Hockley, 2008). However, context effects are still not well understood.The present paper seeks to contribute further to understanding these effects. This is significant not only in theory but has important real-world applications, because memory can be important to the determination of legal questions. One example commonly explored in the literature is eyewitness identification evidence, but in this paper we establish a significant applied need for understanding the impact of context effects because of their implications for trade mark law and other areas of the law that are concerned with enabling consumers to reliably identify desired products and avoid confusion when acquiring products and services.Consumers are frequently challenged to discriminate between the brand they are looking for and a look-alike product. This can be difficult especially when the look-alike product has things in common with the sought-for brand -that is, has common context. For the purpose of understanding how consumers recognize a product that is displayed on a shelf or depicted on a website we consider context to include the physical location, the shoppers' understanding of the physical location (e.g., an upmarket retail outlet), and any aspects of the 1 In the recognition literature context includes the learning location (study room), internal states (mood), the subject's understanding of the situation (psy...

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The Consumer as the Empirical Measure of Trade Mark Law

Cited by 7 publications

References 6 publications

The Many Faces of the Average Consumer: Is It Really So Difficult to Assess Whether Two Stripes Are Similar to Three?

The Many Faces of the Average Consumer: Is It Really So Difficult to Assess Whether Two Stripes Are Similar to Three?

Fashion designs and brands: The role of the informed user and the average consumer

Recognition in context: Implications for trade mark law

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