The lack of distinctive character of the trade mark and the protection against unfair commercial practices: in connection with the European Court of Justice judgment on the “three stripes” trade mark

Ana Clara Azevedo de Amorim

Keywords

trade mark; declaration of invalidity; unfair commercial practices; confusion; competitors; consumers.

Abstract

The lack of distinctive character is an absolute ground for refusal to register trade marks, in accordance with Directive (EU) 2015/2436 and Regulation (EU) 2017/1001. The protection against unfair commercial practices may constitute a complementary guarantee mechanism for the proprietors of trade marks, particularly in cases of confusion created by the absence of product differentiation. The legal framework laid down in the Directive 2005/29/EC safeguards the consumers economic interests, by prohibiting some behaviours that harm often also the competitors.