Exploring Use of the Same Mark by Multiple Undertakings
Edited by IIanah Simon Fhima
Chapter 2: An Economic Perspective on Shared Name Issues in Trade Mark Law
Andrew Griffiths 1. INTRODUCTION In the European Trade Mark Directive (‘the EC Directive’)1, a trade mark is defined as a sign that is ‘capable of distinguishing the goods or services of one undertaking from those of other undertakings’.2 The European Court of Justice (‘the ECJ’) has stated that the essential function of a trade mark is to ‘guarantee the identity of origin of the marked goods or services to the consumer or end user by enabling him, without any possibility of confusion, to distinguish the goods or services from others which have another origin’.3 It might be inferred from this that a trade mark must relate exclusively to one particular undertaking and that every undertaking should therefore use a separate trade mark to identify the goods it produces or the services it provides. However, this oversimplifies the basis of the differentiation that trade marks achieve and their economic role. This book explores a number of scenarios in which two or more undertakings use the same trade mark to identify their output when it is marketed and 1 First Council Directive of 21 December 1988 to approximate the laws of the Member States relating to trade marks; 89/104/EEC. The EC Directive has substantially harmonized Trade Mark Law throughout the European Union and was implemented in the United Kingdom by the Trade Marks Act 1994 (‘the 1994 Act’). 2 The EC Directive, art. 2. See also the 1994 Act, s. 1(1) and the Agreement on Trade-related Aspects of Intellectual Property...
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