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CONTRIBUTORS:
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JOURNAL:
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ECTA Gazette,
??(52),
97 -
109.
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YEAR:
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2006
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PUB TYPE:
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Journal Article
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SUBJECT(S):
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trade mark, design, law, perception, Gestalt psychology, Gestalt theory
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DISCIPLINE:
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Design
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HTTP:
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http://www.ecta.org/publications_nw_06.php
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LANGUAGE:
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English
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PUB ID:
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103-444-991
(Last edited on
2008/08/27 10:28:39 GMT-6)
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SPONSOR(S):
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ABSTRACT:
The purpose of a trade mark is to enable the consumer to distinguish the goods and services offered to him by their original enterprise. In this respect a trade mark is a sign that can be perceived through any sense the consumer uses to communicate with the outside world. In principle,
any message capable of being perceived by the senses can constitute an indication for the consumer to identify the message covered by the trade mark. “The consumer can memorize it and recall it whenever he is called upon to select the goods or to use the services so marked.
Therefore, the perception process and its rules play an essential role in judging the distinctiveness of the trade mark and how it can be assumed to be confusingly similar to another sign. Case law, that is emerging in particular from the CFI and CDJ on Community trade mark law, has not yet sufficiently explored that process nor understood how the consumer reacts when he is confronted with a trade mark. This absence affects the grounds of the legal judgments both in relation to the assessment of the distinctive character and the comparison between trade marks.
Some problems in the protection of shape and non-conventional trade marks originate precisely from disregarding the way some messages are conveyed to the consumer and processed at the level of perception which
is meant to be the key factor driving the consumer’s decisional behaviour.
Indeed, it is apparent from the above-mentioned jurisprudence that the application of some legal standards (such as, for instance, the one on the so-called ‘average’ consumer’) err on the side of abstraction and subjectiveness. In this respect, the contribution of the science of psychology may be of some assistance in supporting certainty in law and substantiating the grounds of judgments.
This science and, in particular, the German theory of Gestalt, has for some time developed a set of rules governing the visual perception of the sign that can also be transferred to the conceptual and auditive perception.
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