Likelihood of confusion represents one of the grounds of action provided for in Article 8 of the EU Trade Mark Regulation, under which the proprietor of an earlier trade mark may oppose the registration of the trade mark applied for. According to the second indent of Article 8(1) of the EU Trade Mark Regulation, the likelihood of confusion depends on the degree of similarity between the trade marks and the similarity between their goods and services. In this respect, the CJEU has defined the comparison of goods and services and the comparison of signs as steps in the assessment of the likelihood of confusion.
Comparison of goods and services and comparison of signs may result either in a finding that the goods and services or the signs of a trade mark are identical, similar or dissimilar in comparison with another trade mark. The factors and criteria for establishing identity, similarity and dissimilarity have been developed in case law by the Court of Justice of the European Union.
Similarity between the goods and services of the marks being compared may be established on the basis of factors such as the nature, the intended purpose, the method of use, complementarity, competition with each other, distribution channels, the relevant public or the usual origin of the marks.
Signs of trademarks are compared visually, aurally and conceptually. Comparison takes into account the distinctive and dominant elements of the marks, the elements with an independent distinctive role and the mark as a whole.
This master thesis provides a detailed systematic insight into the criteria for establishing the identity and similarity of the goods and services and of the signs of the marks being compared. In doing so, it addresses the main problems and shortcomings of the system.
|
