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Jennifer Davis

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Jennifer Davis

Providing a remedy against a misrepresentation is central to unfair competition law. This chapter is concerned with unfair competition law in four jurisdictions: the UK, France, Germany and the United States. It argues that across these jurisdictions there are at least two different approaches to identifying an actionable misrepresentation: approaches which often coexist within national boundaries, although generally one will predominate. The first approach privileges the importance of consumer confusion for finding an actionable misrepresentation. The second privileges the nature of the misrepresentation, and looks at its effects on the claimant’s goodwill to determine if it is actionable. The chapter concludes that since damage to goodwill is harder to prove than mere confusion, it is the UK and France, who take this latter approach, whose unfair competition laws leave room for greater market freedom not just for businesses who take advantage of such laws but also for their rivals.

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Jennifer Davis and Alan Durant

This article explores, from the point of view of both law and linguistics, how far the application and effect of the law of registered trade marks is shaped not only by legislative initiative but also by changing consumer behaviour and the shifting linguistic currency of the particular signs used (or proposed for use) as marks. It does so by focusing on the thirty-year campaign to register HAVE A BREAK for a chocolate bar, marketed as ‘KitKat’. It considers the changing approach of courts both to inherent distinctiveness and to distinctiveness acquired through use. It also considers the relationship between the average consumer test for distinctiveness and the public interest in leaving certain signs free. It suggests that while the present trade mark regime is open to the registration of slogans, it is not clear that courts have sufficiently considered the public interest implications of increasing trade mark protection in this way.