Reputation in European trade mark law: a re-examination

Under the harmonised European trade mark regime marks with a reputation enjoy expanded protection. This article casts doubt on whether this ‘reputational trigger’ can be justified. It then explores some difficult operational questions about the way the reputation threshold works in cases where the mark enjoys fame only in niche markets or in a limited geographical area, the aim being to illustrate further why reputation is an unsatisfactory trigger for a different type of trade mark protection. Finally, it looks at some of the evidential difficulties involved in adjudicating disputes in which expanded protection is being claimed. It concludes by suggesting that if the evidential problems we identify were tackled the reputation threshold could be abandoned.