Some similarity but not a minimum degree of similarity?:
Are narrowly defined levels of abstraction in the similarity of goods-test contrary to EU trade mark law policy?
– By Gustav Gierlöff –
A minimum degree of similarity among goods (and services) is required for a global appreciation of likelihood of confusion to be carried out under EU trade mark law. The CJEU clarified already back in the 1990’s what factors could be relevant when the similarity-test is carried out, but has never really further elaborated on the similarity-test. The assessment of whether similarity is present is dependent on the preceding assessments of how similar the goods must be for them to be deemed similar at a minimum degree. The article argues that trade mark law policy requires that such preceding assessments must take into account such circumstances which the relevant public may come to rely upon, when making up their mind as to whether the goods come from the same commercial origin. Origin confusion considerations may therefore play an important role already at the stage of the likelihood of confusion-test when the similarity of goods-test is carried out.