scholarly journals The Fairy Tale of the Average Consumer: Why We Should Not Rely on the Real Consumer When Assessing the Likelihood of Confusion

2020 ◽  
Vol 69 (10) ◽  
pp. 1008-1026
Author(s):  
Lotte Anemaet
Keyword(s):  
Present Article ◽  
Fairy Tale ◽  
Distinctive Character ◽  
Trademark Law ◽  
Deep Impact ◽  
Average Consumer ◽  
Confusion Assessment ◽  
National Courts ◽  
Likelihood Of Confusion ◽  
Scope Of Protection

Abstract The present article considers whether the confusion analysis in trademark law is at risk of being used strategically as a self-servicing mechanism by the industry to obtain trademark rights to descriptive, cultural and non-traditional signs. In this context, two features of the trademark system are particularly worrisome. First, trademark owners can strengthen the distinctive character of their marks by investing in marketing and branding campaigns. Second, trademark owners can afford expensive surveys demonstrating the high distinctiveness of their marks and strengthening their position in an infringement case. A study of 189 Dutch cases reveals that in the likelihood-of-confusion assessment, the degree of a mark’s distinctiveness and corresponding empirical findings can have a deep impact. However, the study also shows that descriptive, cultural and non-traditional signs were not often disputed. In practice, the risk of misappropriating these signs might therefore be limited. In some cases, however, trademark owners did succeed in achieving a broad scope of protection regarding descriptive, cultural and non-traditional signs. Therefore, national courts should have more room to make normative corrections in favour of freedom-of-competition interests. This would allow judges to prevent trademark owners from achieving unjustified economic advantages flowing from these signs.

Yellow Dictionaries, Red Banking Services, Some Candies, and a Sitting Bunny

2018 ◽  
pp. 89-106 ◽  
Author(s):  
Annette Kur
Keyword(s):  
National Level ◽  
Law Reform ◽  
Banking Services ◽  
Trademark Law ◽  
Legal Principles ◽  
National Courts ◽  
Scope Of Protection ◽  
The Eu

Colors and product designs face increasingly high hurdles against registration in the EU. However, such marks exist and continue to be registered, not least on the national level. Measuring the scope of protection of such signs therefore remains a key issue in EU trademark law. The appraisal is informed by a number of legal principles and guidelines which are neither completely clear nor uniform in their application by the national courts and authorities. The recent EU trademark law reform has added complexity to the picture by introducing a new limitation permitting to (fairly) use a non-distinctive sign. The meaning and effect of this novel clause still have to be tested in practice.

Artificial Intelligence and Trademark Assessment

2021 ◽  
pp. 266-291
Author(s):  
Anke Moerland ◽  
Conrado Freitas
Keyword(s):  
Artificial Intelligence ◽  
Intellectual Property ◽  
Research Methods ◽  
Interview Data ◽  
Third Party ◽  
Distinctive Character ◽  
Trademark Law ◽  
Unfair Advantage ◽  
Present Information ◽  
Near Future

Artificial intelligence (AI) has an unparalleled potential for facilitating intellectual property (IP) administration processes, in particular in the context of examining trademark applications and assessing prior marks in opposition and infringement proceedings. Several stakeholders have developed AI-based algorithms that are claimed to enhance the productivity of trademark professionals by carrying out, without human input, (parts of) the legal tests required to register a trademark, oppose it, or claim an infringement thereof. The goal of this chapter is to assess the functionality of the AI tools currently used and to highlight the possible limitations of AI tools to carry out autonomously the legal tests enshrined in trademark law. In fact, many of these tests are rather subjective and highly depend on the facts of the case, such as an assessment of the distinctive character of a mark, whether the relevant public is likely to be confused or whether a third party has taken unfair advantage of a mark. The chapter uses doctrinal research methods and interview data with fourteen stakeholders in the field. It finds that AI tools are so far unable to reflect the nuances of the subjective legal tests in trademark law and, it is argued, even in the near future, AI tools are likely to carry out merely parts of the legal tests and present information that a human will have to assess, taking prior doctrine and the circumstances of the case into account.

Emotion Refinement: A Theory Inspired by Chinese Poetics

2007 ◽  
Vol 2 (3) ◽  
pp. 227-241 ◽  
Author(s):  
Nico H. Frijda ◽  
Louise Sundararajan
Keyword(s):  
Present Article ◽  
Life Events ◽  
William James ◽  
Emotional Responses ◽  
Distinctive Character ◽  
Emotion Experience ◽  
Emotion Theory ◽  
Emotional Events ◽  
And Behavior ◽  
Actual Life

William James made a distinction between coarse and noncoarse emotions. In the present article, we explore the nature of such noncoarse emotions, which we designate as emotions with refinement. We take our cue from the treatment of refined emotions in Chinese poetics and philosophy. The theory and description of savoring(in Chinese, p'in-wei) points to several features of emotion experiences and behavior that are usually absent in direct emotional responses to emotional events, such as self-reflexivity and higher level second-order awareness, detachment, and restraint. Emotions with those features can be found outside savoring and aesthetic contexts, for instance while dealing with actual life events. It appears both feasible and illuminating to analyze such emotion experiences and behavior in terms of current emotion theory, notably by means of the constructs of appraisal and action readiness. Emotions with refinement thus fit general emotion theory while also possessing distinctive character within the motion domain. Our analysis has implications for the structure of emotion experience and the study of consciousness.

scholarly journals The Notion of the European Union Trademark

2019 ◽  
Vol 8 (1) ◽  
pp. 21-31
Author(s):  
Jarmila Lazíková
Keyword(s):  
European Union ◽  
Intellectual Property ◽  
The European Union ◽  
Distinctive Character ◽  
Trademark Law ◽  
The Public ◽  
Eu Member States ◽  
Goods And Services ◽  
Court Of Justice ◽  
The Eu

AbstractThe EU trademark law has recorded the important changes in the last years. The Community trademark in the past and the EU trademark at the present have become very popular legal measures not only in the EU Member States but also in the third countries. Its preferences are increasing year to year. The EU trademark may consist of a sign that fulfils two main attributes. Firstly, there is a distinctive character. Secondly, there is a capability of being represented on the Register of the EU trademarks. The second attribute is new and replaced the previous attribute - capability of being represented graphically. The interpretation of the above mentioned attributes is not possible without the judgements of the Court of Justice of the European Union. It is necessary to take into account the kind of trademark, list of the goods and services, which should be signed by the trademark, and its perception by the public. The paper includes the main judgements of the Court of Justice of the European Union related to the interpretation of the sign that may be registered as the EU trademark. They are very helpful in the application practice of the European Union Intellectual Property Office and the national offices of the intellectual property as well.

scholarly journals Legal aspects of trademarks protection before civil courts

2004 ◽  
Vol 56 (4) ◽  
pp. 370-396
Author(s):  
Christos Chrissanthis
Keyword(s):  
Legal Protection ◽  
Legal Aspects ◽  
Civil Protection ◽  
Legal Concept ◽  
Trademark Law ◽  
Likelihood Of Confusion ◽  
Legal Literature ◽  
Origin Function ◽  
Civil Courts ◽  
Indication Of Origin

The evolution of trademark law, from the time of the earliest trademark laws till today, is characterized by a continuous effort by courts and legal literature to extend the civil protection provided to trademarks. These efforts resulted in supplementing the legal concept of ?likelihood of confusion? with the concepts of ?likelihood of association?, ?unfair resemblance? and ?dilution?. This conceptual expansion is readily explained by the increasing significance of the advertising and informational functions of the trademark which is evident in contemporary economy; it is also explained by the inadequacy of the concept of "likelihood of confusion" and the "indication of origin" function to provide sufficient legal protection to trademarks.

scholarly journals FOLKLORIC DISCOURSE AS AN OBJECT OF PHILOLOGICAL RESEARCH

THE BULLETIN ◽  
2021 ◽  
Vol 3 (391) ◽  
pp. 176-181
Author(s):  
Z.M. Bazarbayeva ◽  
T.K. Chukayeva
Keyword(s):  
Present Article ◽  
Critical Analysis ◽  
Fairy Tale ◽  
Contrastive Analysis ◽  
Cognitive Approach ◽  
Research Practices ◽  
Factors Influencing

Тhe article addresses the phenomenon of folkloric discourse in the light of philological research. There is a comparison and contrast of several approaches to the study of folkloric discourse and its components: fairy-tale discourse, ballads, songs, proverbs etc. In contemporary philological research there are various approaches to investigating discourse in general and folkloric discourse in particular: cognitive approach, critical analysis, contrastive analysis etc. The notion of folklore is sometimes utilized synonymously to the notion of folkloric discourse in reference to folkloric texts realized in the particular period of time. The present article attempts to draw a line of demarcation among these notions and define them as separate phenomena, though intricately connected to each other. This inquiry is based on the necessity of identifying the place of folkloric discourse in the system of linguistic and literary researches. The most common definitions of folklore and folkloric discourse are exemplified and their essence is analyzed. Commemoration in folkloric discourse is emphasized as one of the factors influencing the separation of this type of discourse in various research practices. Additionally, the main vectors of the influence of folkloric discourse are identified.

Management of Fistula In Ano (Current Practices)

2017 ◽  
Vol 2 (3) ◽  
Author(s):  
Vachanashruti Vachanashruti ◽  
Shashikant Kannade
Keyword(s):  
Quality Of Life ◽  
Chronic Illness ◽  
Present Article ◽  
Clinical Features ◽  
Medical Field ◽  
Treatment Methods ◽  
Deep Impact ◽  
Fistula In Ano ◽  
Ancient Times

Fistula in ano is a disease known to the humanity since ancient times. It is a chronic illness which is, though not fatal but quite discomforting and troublesome to the patient and often puts deep impact on the quality of life of a patient. Despite many advances in medical field, it still poses a big challenge to the surgeon as there is no suitable curative treatment available so far. For the same reason, Sushruta has aptly described this disease as one of the Ashtamahagada. He was first person to describe the etiology, clinical features and management. So in present article an attempt has been made to enlighten the different treatment methods of Bhagandara.

Similarity of Marks

2019 ◽  
Author(s):  
Ilanah Fhima ◽  
Dev S. Gangjee
Keyword(s):  
European Union ◽  
Crucial Role ◽  
Trade Mark ◽  
The European Union ◽  
Conceptual Similarity ◽  
Average Consumer ◽  
Court Of Justice ◽  
Likelihood Of Confusion ◽  
Constituent Elements

The test for similarity of marks has changed very little since it was laid down by the Court of Justice of the European Union (CJEU) in SABEL v Puma. Given that the court has adopted a strict approach to when marks will be identical, similarity of marks plays a crucial role in ensuring that the interests of trade mark owners are adequately protected. There the court stated that a ‘global appreciation of the visual, aural or conceptual similarity of the marks in question, must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components’ with a view to determining whether the signs in question are similar enough to lead to a likelihood of confusion in the minds of the average consumer of the goods or services in question. It has subsequently been suggested that, where marks have other sensory aspects, as would be the case with, for example, an olfactory mark, these too should be considered. The court also noted that average consumers tend to view marks as a whole, rather than dividing them into their constituent elements.

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