Browsing by Author "Andersin, Atte Juhani"

Likelihood of confusion in trade mark law protects the proprietor of the earlier trade mark from the use of similar marks in the course of trade in situations, where the similarity of the marks is likely to induce confusion as to the origin of the goods or services in the eyes of the relevant public. Assessment of likelihood of confusion and criteria related thereto are notably complicated and ambiguous due to the wide wording of the relevant provisions and incoherent legal praxis. This treatise inspects the concept of likelihood of confusion in the context of three-dimensional trade marks and 3D printing. The research systematises the assessment of likelihood of confusion in a digital context and identifies the special problems in the legal evaluation emanating from the new technology. Questions are assessed mainly from the point of view of a trade mark proprietor. Despite the main rule of trade mark law being similar assessment of all different types of trade marks employing similar criteria, certain special characteristics and requirements are imposed on shape marks, such as the assessment of sufficient distinctive character in accordance with the Henkel test. Distinctive character possesses notable importance in relation to likelihood of confusion, since e.g. a high level of distinctiveness of the earlier mark has been found to increase the possibility of finding likelihood of confusion to some extent. Situations of likelihood of confusion are divided into relative grounds for refusal or invalidity and uses within the scope of the exclusive right of the proprietor. Additionally, protection can be claimed in three different forms according to how likelihood of confusion is understood in the situations. These forms encompass protection against identical marks in the same goods or services where likelihood of confusion is presumed, protection against identical or similar marks in the same or similar goods or services, i.e. the core of likelihood of confusion as well as extended protection of marks with a reputation, where likelihood of confusion is usually claimed but not required in order to afford protection. Furthermore, since 3D printing is based on a so-called CAD file, the assessment needs to consider the both levels of digital files and physical printed objects. Especially the legal position of digital CAD files in trade mark law is ambiguous and the circumstances relevant to the assessment differ from the physical world. In the technical sense 3D printing is a relatively new method of production, where a physical item can be created by using a digital blueprint, i.e. a CAD file, layer upon layer. Owing to the process, the printed objects possess certain characteristics in relation to appearance and functionality, such as a layered and monochromatic surface, depending on the material used, printing method and level of sophistication of the printer itself. On the other hand, the technology enables the effortless creation of extremely complicated structures, combining internal movable parts and structures as a single print without the need for a separate assembly and endless possibilities for customisation of an existing product. Also the cost per unit of printed items is not dependent on the amount of units produced, but the economics of scale of 3D printing result in a constant cost per unit, thus differing significantly from traditional mass manufacturing. The market of consumer 3D printing is emerging rapidly, largely due to significant decrease in printer and raw material prices, which is likely to result in an exponential growth in possible trade mark related problems due to the disruptive nature of the technology. The technology also enables manufacturing away from control, which means that proprietors of trade mark rights will need to adapt their enforcement strategies accordingly. The research identifies the criteria that need to be considered when assessing likelihood of confusion in connection with 3D printing. Besides the obvious benchmarks in relation to assessing the similarity of the signs, the criteria encompasses the special characteristics in assessing similarity of the goods or services and determining the relevant public. Even though 3D printing is unlikely to significantly affect the main process of assessment of likelihood of confusion, the research points out certain factors that are in need of clarification by case law or the legislature in order to enhance legal certainty and promote innovation and emerging business models, in both 3D printing and other fields of business. Additionally, since 3D printing is likely to diminish the inherent value of trade marks, the increasing pressure for legislative reform diminishing the negative effects of artificial scarcity created by trade mark enforcement and facilitating brand creation, e.g. by shifting the emphasis on protection the additional functions of trade marks is discussed.