Blurred Lines : The assessment of detriment to distinctive character in Europe and the requirement to prove a change in the economic behaviour of the consumer

Abstract: The extended protection offered to reputed trademarks in article 8(5) EUTMR and in particular the illusive concept of detriment to distinctive character has been causing difficulties for both legislators and courts throughout Europe since the concept was introduced by Frank Schechter in 1927. Detriment to distinctive character, or blurring as it also called, has undergone several changes since its implementation in the first trademark regulation due to case law from the CJEU and no case has had a bigger impact in this area than the Intel judgement. In Intel the court sought to resolve any uncertainties about detriment to distinctive character once and for all by developing the global appreciation test which was to consider all factors relevant to the case at hand. This test was however rather undermined by the introduction of the unsupported requirement that the proprietor had to prove a change in the economic behavior of the consumer. Since Intel, the number of claims regarding detriment to distinctive character has decreased due to the strictness of the requirement and the unwillingness of the court to sufficiently explain what sort of evidence that would effectively prove such change. As it stands, the concept of detriment to distinctive character is in serious risk of becoming redundant due to the current test for blurring not being fit for purpose.