Trademarks, Brands, Patents, Designs, Made in Italy, Copyrights, Competition Law, Contracts and Enforcement

21 ottobre 2007

Stefano Sandri “Perceiving the Trade Mark: from the Identy of the Sign to the Likelihood of Confusion”


We may perceive what we don’t see and we may see what we don’t perceive. These two phenomena also apply to trademarks. Courts, in particular, the European Court of Justice, seem to give more and more consideration to how consumers perceive trademarks. However, legal scholars have not yet thoroughly investigated this issue, even though existing legislation as well as many Courts’ decisions make reference to concepts which belong to psychology and cognitive science. Examples are the concepts of “likelihood of association”, “global impression” or “dominant elements in composite marks”, where so far only mere legal and abstract standards are usually applied. The idea of Sandri is to better understand how the relevant public reacts when it encounters a sign we consider a trade mark. Thus, in the first part of his book, Sandri explores the fascinating word of the science of perception, trying to identify those main essential characters of a trademark which may provide assistance to judges and lawyers in defining, for instance, the degree of distinctiveness of a trademark or in assessing if the consumer may be led into assuming a confusingly similarity between two trademarks. To find such main elements, Sandri proposes a model as to construe the identity of the trade mark based on a semantic-based theory of interpretation of the signs, and examines the mechanics and the processes of the perception. In Sandri’s work, the process starts from the analysis of the consumer’s instantaneous awareness of a mark, moves to the analysis of memorization of the mark and ends in the analysis of the way the consumes recalls the mark. A summary of some fundamental perception rules concludes the search. In short this book may be the first attempt, to integrate, through an interdisciplinary approach, the rules of perception with the current legal-only treatment of the trademarks. Sandri’s view is that while we need not replace law with psychology, we ought to base decisions on trademarks also on scientific and objective contributions derived from the understanding of cognitive and perception-based mental processes, to avoid the uncertainty and unpredictability which still affects too many trade marks cases.

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