Strong trade marks and the likelihood of confusion in European law

Legal context. One of the fundamental assumptions of trade marklaw is that provision should be made to prevent the registrationor commercial exploitation of trade marks that are likely tobe confused with earlier marks. The justification for this assumptionis however unclear. Is it to protect the expectation of itsowner that a trade mark will provide a comfort zone, an areawithin which other traders simply may not enter? Is it to encourageinvestment in the development of a relationship between thetrade mark owner and his prospective customers by offering interference-freemarketing opportunities? Is it to protect the efficiency ofthe market by facilitating the making of decisions by consumersas to which product or process they wish to purchase? Or isit to protect the vulnerable consumer against the personal consequencesof his inattention or inability to discern the differences betweenproducts or services? Key points. This article examines the development of Europeanlaw relating to the protection of strong trade marks, thosewhich are highly distinctive or well known, against similarmarks that may or may not be likely to cause consumer confusion.It demonstrates the manner in which the European Court of Justiceseeks to address the likelihood of confusion in terms whichappear to draw more from legal abstractions than from marketrealities. After giving a favourable review of the controversialdecision of that court in the PICARO/PICASSO case, the articlelists further issues which European trade mark litigation hasso far failed to address. Practical significance. Armed with an understanding of the principlesemployed by the European Court of Justice, trade mark proprietorsin Europe will obtain a better appreciation of the strategiesto be used in either challenging competitors' marks in courtor adopting commercial measures to combat them.     

Time to play Catch-Up

‘Catch Us If You Can!!!’ is the improbable nameof an Italian weblog managed by Lorenzo Litta and mastermindedby veteran IP expert Stefano Sandri. Although it is rarely possibleto measure what a blog achieves, it is usually quite feasibleto identify what it tries to do. In this instance the bloggers’objective is to raise their readers’ sensitivity towardsintellectual property rights issues and to create a greaterawareness of the parameters of protection and permitted usein a culture which places a     

Veni, vidi, wiki

‘Veni, vidi, vici!’ (‘I came, I saw, I conquered’),Julius Caesar's memorable soundbite from the Battle of Zelain 47 BC, has been for nearly two millennia a byword for thetriumph of the new order over the old. Substitute the homophone‘wiki’ for ‘vici’ and the symbolismremains apt. While the rise of the personal computer, the developmentof the internet and the advent of mobile telephony have eachbeen hailed as the greatest transformative feature     

A film with an overt IP theme ...

Not many films have as overt an intellectual property themeas the Oscar-nominated The Man in the White Suit, a sweet-and-sourEaling comedy with compelling social content. The protagonist,Sidney Stratton (played by Sir Alec     

Homogenous Base Rates for Malingering in Neuropsychological Examination of Litigants

Base rates for malingering are often obtained and averaged across multiple clinicians who apply heterogeneous methods for detection (Mittenberg et al., J Clin Exp Neuropsychol 24: 1094?1102, 2002; Young, Psychol Inj Law 8: 200–218, 2015). Our aims of obtaining homogenous base rates included the following: (a) evaluation of all our legal cases in accordance with the guidelines set forth in the position papers by both the National Academy of Neuropsychology and the Association for Psychological Advancement in Psychological Injury and Law, (b) minimal variation between our comprehensive neuropsychological examinations, and (c) determination of base rates of failed effort in 150 consecutively examined legal cases in one medical setting. To assess the various levels of volitional exaggeration, we introduced four gradations of poor effort definitions, which relied on performance validity tests (PVTs). A comparison between two consecutive samples of 75 litigants indicated less frequent poor effort with increasingly more conservative criteria. In our analysis of a subset of litigants who sustained traumatic brain injuries (N?=?115), the four base rates for mild versus moderate-severe TBI groups were equivalent for the two more lenient malingering definitions but varied for the two more conservative definitions. Specifically, for the mild TBI cases investigated, the percentage of three PVT failures (or one PVT failure significantly below chance) arrived at 3.4 %. Our final aim was to compare the base rates of poor effort that were obtained with PVTs to the base rates of emotional and physical symptom endorsement, which were obtained with symptom validity tests (SVTs). No significant correlations emerged in this analysis. The discussion emphasizes the relatively lower base rates of poor effort found in the convenience sample studied in neuropsychological evaluations relative to the higher estimates in the literature (40 +/? 10 %, Larrabee et al., Clin Neuropsychol 23: 841–849, 2009) but not others based on comprehensive review (Young, Psychol Inj Law 8: 200–218, 2015).