What is distinctive about ‘distinctive character’ and who decides?

By Julius Stobbs

Consumers are becoming increasingly sophisticated when it comes to understanding brands, which is highly relevant to the understanding of ‘distinctive character’. However, courts and tribunals are not keeping up with this trend in their decisions

Distinctive character is one of, if not the, key concept in trademark law. It determines what can be registered and what cannot, and is one of the key aspects to understanding how consumer confusion occurs and thus the scope of any registration. Whether a mark is distinctive and how distinctive it is are central questions in almost all trademark matters.

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