The Public Domain Is Under Pressure – Why We Should Not Rely on Empirical Data When Assessing Trademark Distinctiveness

Abstract

This article argues that the existing balancing tools in EU trademark law are not sufficient to prevent the misappropriation of signs. The present article considers whether the threshold for assuming acquired distinctiveness in EU trademark law is too low. In this context, the threshold for assuming acquired distinctiveness is viewed from a legal, economic and psychological perspective. It is argued that the threshold for assuming acquired distinctiveness is not efficient enough and should therefore be applied more restrictively. The study also reveals that this instrument may create dysfunctional incentives and may in fact make it attractive for traders to invest in descriptive, cultural and non-traditional signs, because trademark owners can impact these signs acquiring distinctiveness and invest as needed until they acquire control of their preferred sign. In order to guarantee that these signs remain in the public domain, adopting an outright exclusion is necessary for descriptive, cultural and non-traditional signs that cannot be overcome through acquiring distinctiveness in consequence of use in trade.