The art of the unsettlement

The best litigation lawyer, it is often said, is not the onewhose rapier-like wit demolishes the foe in court but the onewho knows how to negotiate. Having demonstrated that your clienthas the upper hand, why grind remorselessly through the mechanismsof the court when you can press your advantage home by sellingthe losing party a settlement agreement? There is so much to be said in favour of settlement. The losing     

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.