An Empirical and Comparative Analysis of UK Courts and CJEU decisions in Trademark Law: defining the nature and understanding the characteristics of inconsistencies in EU Trademark law

From a European Internal Market perspective and by having exclusive rights, trademarks like other Intellectual Property (IP) rights provide opportunities for goods and services to acquire monopolistic attributes which exist in a state of tension with market norms of free competition. As a result, this facilitates legal uncertainties, contradictions, ambiguities and a consistent favouritism of trade marks owners within this field. To contribute to the resolution of these problems, this thesis combines a mixed method approach in the examination of four areas in EU trademark law. Firstly, it explores the areas of likelihood of confusion, unfair advantage and trademark registrations in a qualitative analysis of the various inconsistencies that arise. Secondly, it utilises empirical methods (‘fuzzy sets’ and ‘building blocks’) as analytical tools in investigating the area of exhaustion of rights. It argues that using these empirical methods in this area offers a roadmap aimed at understanding the subset relationships that emerge from the inconsistencies and ambiguities. The outcome is a set of recommendations that articulate improvements to help navigate this complicated area of law. In order to set the context for achieving the above, this thesis postulates that the existing tension in this area has dual features, i.e. part of the problem can be traced back to the troubled drafting history of EU trademark laws borne out of the harmonising initiative started in 1960. The other part of the problem is in relation to the drafting consequences of the pertinent EU trademark laws; in particular, the interpretation of courts that have continued to perpetuate these uncertainties. In this regard, this thesis argues that the logic of these ambiguities in EU trademark law is twofold. Firstly, the contradictions in judgements can be understood by observing the different theoretical legal perspectives and interdisciplinary angles legal issues are approached from and are ultimately influenced by. Secondly, the specific ambiguities in CJEU judgements can be further understood by examining the rules of legal reasoning and statutory interpretation adopted in cases. To explore the above, this study compares how the UK courts adhere to specific EU trademark rules set by the regional standard of the Directive/Regulation and CJEU judgments. To achieve this, this study utilises empirical methods to quantitatively explore the extent to which the factors compiled from EU trademark law in landmark trademark cases are those that explicitly drive judicial decision-making in the UK cases. Furthermore, this thesis offers a qualitative analysis of the quantitative results to provide contextual explanations, particularly focusing on a comparison of the UK courts approach and the CJEU approach. The implications of this study should provide useful and practical insights for UK courts and Parliament specifically now that the UK is set to leave the European Union. The lessons to be learnt from comparing the UK’s approach to the EU regional approach will inform an improved future system the UK could adopt both in its negotiations with the EU and domestically for trademark law post Brexit. By understanding the nature, history and ongoing interpretive challenges of these ambiguities and uncertainties, the UK will have the opportunity to avoid them in future. In addition, the discussions in this thesis also present the potential to retain the more positive aspects of EU trademark law and thus, enhance the current position of UK trademark law.