Olteanu, Luminita; (2023) Rethinking Trade Mark Reputation and Its Susceptibility to Dilutive Harms. Doctoral thesis (Ph.D), UCL (University College London).

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Abstract

This thesis explores the law protecting trade marks with reputation before and after the European Union (EU) harmonization of Member States’ trade mark law. It contends that early forms of dilution protection emerged in the 1920s as a reaction to the new ways in which consumers engaged with trade marks following the intensification of advertising practices. This research explains that since then, consumer interaction with trade marks has changed substantially thus leading to blurred boundaries between consumption and production of trade marks with reputation. It is suggested in this thesis that these developments have challenged the assumptions which underpin those dilution protection justifications based on misappropriation rationales or advertising and innovation incentivisation arguments. This research argues that these objectives (i.e. preventing trade mark appropriation or encouraging advertising or innovation through trade mark law) cannot form the normative basis of anti-dilution protection, although several decisions of the Court of Justice of the European Union (CJEU) suggest otherwise. This research cautions that in practice, construing and applying EU dilution law guided by imprecise goals or inadequate awareness of consumer behaviour can lead to legal uncertainty. This in turn may trigger overcompliance with powerful trade mark owners’ claims, thus imposing unjustified costs on consumers or potentially turning the law into an anticompetitive tool. Instead, this thesis claims that the appropriate normative justification for EU dilution law which promotes a competitive business environment is the protection of marks’ informational and consumer-coveted capital against acts that frustrate consumers’ purchasing decision-making process. Drawing on marketing and consumer research literature, it reflects on a framework for reconceptualising the dilution infringement test that accounts for the ways in which consumers relate to trade marks with reputation and observes the appropriate justification for dilution law.

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