Trademark Rights and Consumer Perception: The Tension Between a Normative and an Empirical Assessment of Consumer Perception in EU Trademark Law

Research output: PhD ThesisPhD-Thesis - Research and graduation internal

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In sum, the foregoing study thus shows the current tension in EU trademark law between a normative and an empirical approach to consumer perception. Admittedly, the EU trademark law system provides several legal tools to keep the system balanced. However, this study also illustrates that some legal instruments may not be applied in a sufficiently effective way. Indeed, the trademark system might give trademark owners dysfunctional incentives to invest in signs that should remain freely available to other traders on the market or the public in general. Particularly, the distinctiveness requirement is unpredictable and risky since trademark owners can influence whether signs acquire distinctiveness and invest as needed until they acquire control of their preferred sign. To minimise the risk of encouraging traders to invest in signs that need to be kept free, such as non-distinctive, descriptive and generic signs, and to offer breathing space to other traders to use similar signs, it is strongly advised to allow courts to make normative corrections when assessing infringement questions. In this way, courts can still discourage undesirable trademark acquisition strategies by demonstrating that, even if a trademark registration can be obtained, the scope of protection will remain very limited. In the end, large investments in consumer education may thus fail to “pay off”. There is even more reason for this approach since courts already provide normative corrections in favour of trademark owners when confusion in respect of highly distinctive marks is at issue. Finally, a more empirical approach to assessing honest practices would further enhance freedom of competition and freedom of (commercial) expression, and enhanced consumer information and consumer choice. Allowing for normative corrections on both sides of the spectrum and at all levels would prevent the circularity that seems to be inherently linked to the EU trademark system. Following these guidelines, signs cannot be automatically registered based only on empirical findings, and they cannot by definition achieve more protection the more is invested in them.
Original languageEnglish
Awarding Institution
  • Vrije Universiteit Amsterdam
  • Senftleben, Martin, Supervisor
  • Smeehuijzen, JL, Co-supervisor
Award date25 Oct 2021
Place of Publications.l.
Publication statusPublished - 25 Oct 2021


  • Consumer perception
  • Court of Justice of the European Union
  • Acquisition of trademark rights
  • Distinctiveness
  • Public domain
  • Likelihood of Confusion
  • Need to keep free
  • Dutch case law
  • Empirical analysis
  • Honest Business Practices


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