An empirical analysis of the likelihood of confusion factors in European trade mark law

The empirical study of trade mark law is in its infancy, particularly in the EU. However, it may have much to teach us about how trade mark law operates in practice, particularly in the context of the Court of Justice of the European Union’s (CJEU) case law, which, because of the structure of EU trade mark law, is necessarily quite abstract. This study employs empirical methods to understand how the test for the likelihood of confusion is operated by the courts. Influenced by developments in US academic writing, this is the first European study to employ empirical methodology to investigate which factors are having the most influence on how courts decide whether likely confusion is present in the cases. This study seeks to establish whether the factors adumbrated by the CJEU are being correctly applied by the lower courts. Although the authors found that the CJEU’s test is generally being applied, this study identifies the fact that the General Court is largely ignoring one of the factors, the distinctiveness of the senior trade mark.