Post-Sale Confusion

Journal of Intellectual Property Law & Practice, Vol. 2, pp. 315-323, 2007

Posted: 7 Oct 2006

See all articles by Ben Allgrove

Ben Allgrove

Baker & McKenzie LLP, London

Peter O'Byrne

Baker & McKenzie

Abstract

Recent case law has established that post-sale confusion is relevant to determining whether or not there has been registered trade mark infringement under English law. This raises questions as to what that relevance is in practice and whether or not the common law of passing off should develop accordingly to take post-sale confusion into account. In this article, the authors review the case law on the relevance of post-sale confusion to actions for trade mark infringement and passing off. They conclude that English law does regard post-sale confusion as relevant to trade mark infringement, provided that there is also sufficient similarity on a mark for sign basis at the point of sale. They argue that the tort of passing off should develop in the same way. This is of practical importance because brands can be harmed even where there is no confusion at the point of sale. The law's development to recognise provides important weapons for brand owners, particularly in the context of look-alike products. Published in (2007)(2) Journal of Intellectual Property Law & Practice 315-323. Full text available - http://jiplp.oxfordjournals.org.

Keywords: Intellectual property, passing off, confusion, trade marks, post-sale confusion, unfair competition

Suggested Citation

Allgrove, Ben and O'Byrne, Peter, Post-Sale Confusion. Journal of Intellectual Property Law & Practice, Vol. 2, pp. 315-323, 2007, Available at SSRN: https://ssrn.com/abstract=934728

Ben Allgrove (Contact Author)

Baker & McKenzie LLP, London ( email )

100 New Bridge Street
London EC4V 6JA
United Kingdom

Peter O'Byrne

Baker & McKenzie ( email )

100 New Bridge Street
London EC4V 6JA, EC4V 6JA
United Kingdom

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