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Trade marks favour the consumer and should be more widely available so that in exchange for high prices, high quality in goods and services is assured.” Discuss this statement with reference to Irish law. We use the book intellectual property law in ireland,(clarke, smyth)
This article shows the necessity of including policy concerns, in particular the need to keep signs available for competitors, when assessing a likelihood of confusion. In the Adidas/Marca case, the CJEU ruled that the need to keep signs freely available for other economic operators cannot be a relevant factor in the infringement analysis. This is particularly problematic in relation to appealing signs such as stripe motifs. These signs not only serve as a source identifier, but also appeal to consumers and therefore give trademark owners an advantage over competitors on the market. In order to offer sufficient room for the concerns of trademark owners and competitors (and ultimately also consumers), it is essential to apply normative corrections not only in favour of trademark owners but also in favour of competitors. The current analysis of confusion in EU trademark law already contains a normative correction in favour of trademark owners. From an empirical perspective, the more distinctive the trademark, the less likely consumers are to be confused when confronted with a similar sign.