Protecting Trade Mark Proprietors Against Unfair Competition in EU Trade Mark Law

With aims of protecting trade mark proprietors against commercial practices of third parties that could hinder the use of the trade mark in informing and attracting customers, negatively influence its selling power, or exploit its attractive force, the EU legislator and the Court of Justice of the EU (CJEU) have broadened the protection afforded under trade mark law to cover such acts. At the same time, the CJEU has sought appropriate balance between the exclusive rights of trade mark proprietors and the interests of third parties, in allowing those practices that can be deemed acceptable as part of fair competition. The author argues that, in consequence, EU trade mark law is becoming ever more an EU law of unfair competition with regard to practices that involve the use of trade marks. The article represents an attempt to explain these developments by looking at specific policy choices and decisions of the CJEU on the protection of trade marks, alongside the wider context of EU law dealing with unfair competition. A key conclusion is that, in light of the lack of harmonisation of unfair competition law in the EU (at least pertaining to practices that affect businesses), the widening of the scope of protection under trade mark law helps to ensure the necessary degree of harmonisation while avoiding a parallel system of protection. When compared to pre-existing EU instruments of unfair competition law that prohibit certain uses of trade marks, this approach provides trade mark proprietors with a more efficient mechanism for enforcing their rights. In the course of elucidating this finding, the article gives the reader an understanding of how EU law addresses the protection of the commercial value of trade marks.