Reputation in European trade mark law: a re-examination

Burrell, Robert; Handler, Michael

doi:10.1007/s12027-016-0419-2

Cited by 6 publications

(4 citation statements)

References 11 publications

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“…As noted previously, one aim of the present studies was to evaluate the validity of assumptions about similarity made in the law. A legal assumption is that perceived similarity of brand names is enhanced by a beginning overlap in the names (Burrell & Handler, 2016). Although this assumption is shared in the lexical processing literature, there is to our knowledge no evidence on the effects of beginning overlap on subjective ratings of similarity.…”

Section: Methodsmentioning

confidence: 99%

“…An additional question was whether similarity of pronunciation would impact similarity judgments about visually presented words, 1 and the impact of word length. Courts regularly consider all these aspects of similarity, but with little by way of empirical support for judicial assumptions about what factors are most important in judgments of similarity, or how these factors interact (Burrell & Handler, 2016, pp. 206–208).…”

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confidence: 99%

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Brand name confusion: Subjective and objective measures of orthographic similarity.

Burt¹,

McFarlane²,

Kelly³

et al. 2017

Journal of Experimental Psychology: Applied

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Determining brandname similarity is vital in areas of trademark registration and brand confusion. Students rated the orthographic (spelling) similarity of word pairs (Experiments 1, 2, and 4) and brandname pairs (Experiment 5). Similarity ratings were consistently higher when words shared beginnings rather than endings, whereas shared pronunciation of the stressed vowel had small and less consistent effects on ratings. In Experiment 3 a behavioral task confirmed the similarity of shared beginnings in lexical processing. Specifically, in a task requiring participants to decide whether two words presented in the clear (a probe and a later target) were the same or different, a masked prime word preceding the target shortened response latencies if it shared its initial three letters with the target. The ratings of students for word and brandname pairs were strongly predicted by metrics of orthographic similarity from the visual word identification literature based on the number of shared letters and their relative positions. The results indicate a potential use for orthographic metrics in brandname registration and trademark law.

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Section: Methodsmentioning

confidence: 99%

mentioning

confidence: 99%

Brand name confusion: Subjective and objective measures of orthographic similarity.

Burt¹,

McFarlane²,

Kelly³

et al. 2017

Journal of Experimental Psychology: Applied

View full text Add to dashboard Cite

show abstract

“…Potential consumer confusion is also relevant at the registration stage: trademark offices will refuse registration of a trademark that is confusingly similar to one that is already registered for similar goods or services. In some cases, the assessment of confusion is very abstract: because trademarks can be registered before they are used, courts and trademark offices are sometimes not really assessing whether consumers are currently likely to be confused by the second comer’s use, but whether they would be confused if they knew and had an imperfect memory of the registered mark (Burrell & Handler, 2016, pp. 222–229; Dinwoodie & Gangjee, 2015; Weatherall, 2017).…”

Section: An Introduction To the Legal Issues And The Potential Role F...mentioning

confidence: 99%

“…The present work seeks to test one of the assumptions that courts make either explicitly or implicitly in cases involving lookalike products in Commonwealth countries. Namely, that confusion is unlikely as long as the brand or product name is different (Burrell & Handler, 2016). In the Australian Maltesers decision, for example, an imitator adopted packaging very similar to the leading chocolate brand, using the same bright red color on packaging that depicted spherical chocolate balls, some of them sliced in half to show a yellowish center.…”

Section: An Introduction To the Legal Issues And The Potential Role F...mentioning

confidence: 99%

How important is the name in predicting false recognition for lookalike brands?

Humphreys

McFarlane

Burt

et al. 2017

Psychology, Public Policy, and Law

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An underexploited role for psychology in trademark law is the testing of explicit or implicit judicial assumptions about consumer behavior. In this article we examine an assumption that is common across Commonwealth countries, namely, that similar packaging is unlikely to cause consumer confusion provided the brand names are dissimilar. We began by selecting branded products commonly found in supermarkets. For each existing brand we created 2 novel (fictitious) brands with highly similar packaging to the existing brand. One of these “lookalike” products had a similar name, the other a dissimilar name. Across 2 yes/no and 1 forced-choice experiments using photographs of the real and fictitious products we looked at false recognition rates. Contrary to the judicial assumption participants largely ignored the brand names when making their decisions based on memory. It was only when the pictures of the products were placed side-by-side (in the forced-choice task) that they paid the brand name any significant attention.

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Riding on the Coat-Tails of Traditional Cultural Expressions

Olteanu

2020

Int J Semiot Law

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Matters related to the protection of traditional cultural expressions (‘TCEs’) or expressions of folklore (‘EoFs’) are sensitive and intricate as a blend of legal, economic, philosophical and anthropological considerations jostle to capture their core features. This results in disparate views surrounding what should qualify as TCEs or EoFs, who should be considered their ‘owner’ (assuming that ownership per se is conceptually compatible with these items), which is the most appropriate legal protection regime and how broad their scope of protection should be. Drawing from these various accounts on TCEs, this article focuses on the interaction between TCEs and EoFs originating on the European continent and the European Union (‘EU’) trade mark legislation. Specifically, this article examines whether the limitations of the effects of trade mark rights and of the absolute grounds of refusal, as developed by the case law of the Court of Justice of the European Union, are effective in preserving the cohesion of TCEs. This article advances the thesis that registration of TCEs and EoFs as trade marks generates an imbalance between the rights of the trade mark owner and the defences available to others under the EU trade mark law framework. Furthermore, such an imbalance is likely to hinder the unfettered circulation of TCEs and undermine their original meaning. Lastly, in some cases, trade mark registration of TCEs contributes to their appropriation and misappropriation. The article concludes that, de lege ferenda, the direct exclusion of TCEs as eligible subject matter for trade mark registration is preferable to seeking a post factum remedy.

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Reputation in European trade mark law: a re-examination

Cited by 6 publications

References 11 publications

Brand name confusion: Subjective and objective measures of orthographic similarity.

Brand name confusion: Subjective and objective measures of orthographic similarity.

How important is the name in predicting false recognition for lookalike brands?

Riding on the Coat-Tails of Traditional Cultural Expressions

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