Introducing reality into trade mark law

Abstract

The purpose of this piece is to draw attention to parallels between how European trade mark law treats certain issues pertaining to distinctiveness in the light of the Kit Kat reference and recent United States scholarship on confusion. It will be argued that, while the courts require a detailed consideration of consumer perception in establishing distinctiveness, this is not always the case when it comes to establishing confusion. However, a group of US scholars have called for a consideration of the real effect of junior use on consumers as part of the confusion test. I argue that this scholarship and European developments in the field of distinctiveness share a refreshing concern for the reality of consumer perception.