VICTORY TROUGH HARMONY! This well known slogan
of the Arsenal F.C. came into reality after contradictory judgements of the
European Court of Justice and English High Court through ECJ’s interpretation
of harmonized European Trademark law. The Arsenal Court, with its historical
judgement rather than providing a clarification to the case before it, bring
out many crucial questions regarding to the European trade mark law from the
legitimacy of the post sale confusion to functions of trade mark, from
definition of trade mark use to merchandising rights and even to the real
competences of the European Court of Justice. Rather than answering questions
of the referring Court, ECJ’s reinterpretation of the facts and analysing the
case with its own facts by giving special focus on the functions of trade mark,
Advocate General’s wide, even in most part economical, considerations and
substantial justifications, High Court’s rejection but Court of Appeal’s
confirmation and interpretation of the ECJ judgement, all these development
reserved the Arsenal case one of the most discussed and extraordinary cases of
the European case law. Within this
context one of the most important effects of the Arsenal case arguably was its
substance in a way to cause further questioning the rationale for the trade
mark protection. Arsenal court’s approach to the trade mark infringement Sub
rose reminded the world wide anxieties about the propertization and erosion
in the public functions of the trade mark law. The main argument of this
paper will be built on consumers are the legitimizing element of the trademark
protection in the trademark infringement cases. Thus very legitimate boundary
of the trademark protection in the infringement cases is determined by the
trademarks capability to perform its positive functions in regard to consumers.
In the part I, paper will discuss expansionist nature of European trademark law
in the light of Arsenal and subsequent case law. In the Part II expansion of
trade mark law and trend toward the propertization of trademark will be
analysed. Part III will focus on the indispensable place of confusion under the
trademark infringement law and will try to justify any attempt to ignore
confusion criteria in the infringement cases would undermine basic foundations
of the legal protection of trademarks.
