Empirical Legal Studies

Trade mark law

Article 10 (2) opening words and (b) of the Trade Mark Directive entitles a trade mark owner to object to infringements of his trade mark by a mark that is 'identical with or similar to the trade mark and used in relation to goods or services which are identical with or similar to those for which the trade mark is registered, if there exists a likelihood of confusion for the public'. In practice, parties try to prove this ‘confusion’ by showing results of market research, among other things.

However, the use of market research in court is also controversial. Guidelines on the quality and reliability of market research are lacking. Furthermore, lawyers have difficulty in assessing the methodological validity and the results of market research.  

This research project first of all tries to contribute to the development and clarification of the partly normative and partly empirical criterion of ‘likelihood of confusion’. It therefore examines what empirical findings on assumptions of the European judge mean for the interpretation of this criterion. In addition, this research project seeks to provide further insight into the use of market research in the courtroom. It aims to improve insight for lawyers on this matter and possibly even recommend quality standards for market research, by mapping out, together with social scientists, what good market research must satisfy.