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

03 luglio 2009

Please, don’t forget how your memory works

    Stefano Sandri

    What really consists the long term memory mechanism of ? Why the consumers still and so long retain the Coca-cola trade mark’ all over the world?

    I tried to give an answer to these intriguing demands in my recent search , namely in Percepire il marchio. dall’identità del segno alla confondibilità , 2007, since clearly the answer can be of assistance in assessing the distinctive character of the trade mark and its confusing similarity with other signs. In my work I stressed, inter alia, that the trademark is a process, subject to changes and evolution, and not a well defined outcome. This process is governed and guided by some pre- organized perception rules together with the contribution flowing from the daily experience of the human been. Thanks to the momentum of the attention, the information coming from the outside world is selected and transferred into the store of the memory.

    The scientific research recently carried out by some Nord-American University, at large referred to by media, shows now that such transfer would be accompanied through the neuronic via by the emission of new protein which has been photographed. The process is activated within the synapse, the brain structure which is delegated to receive, exchange and store the data and information received. In particular, the search makes apparent that the storage in the memory of all the signs, trade mark included, is strongly affected by stability and flexibility. Stability leads to solve the legal problem of the identity of the mark, i.e. what message it transfers and how it is perceived by the relevant public (ECJ, case INTEL and CFI, Case FIORUCCI). Flexibility, on its turn, facilitates the better understanding of the discussion between the supporters of an abstract approach to the legal assessment of the trade mark and those on favour of the concrete terms (ECJ, case OPEL ADAM).

    The scientific discover of the American researchers will improve the understanding of the mechanism which stay beyond the creation of the consumer remind when they meet a mark (and supports my thesis !). According to the EC law , the essential function of a trade mark is to enabling the consumer, who acquired goods or services identified by the mark, to repeat the experience, if it proves to be positive, or to avoid it, if it proves to be negative, on the occasion of a subsequent acquisition ( CFI, case HENKEL, and many others). The more the trade mark is stable in its relative network of its components (dominant, marginal, decorative etc.), the more it will be retained in the consumer’ mind (see my matrix on the trademark identity). The more the context of all the pertinent and relevant circumstances (ECJ case SABEL) will be considered by the jurists, the more reactive will be the recall (and the strong) of the trademark in the consumer’ memory.

    Time is coming, dear Colleges, to start to think on trademarks not in mere legal terms.

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