Förväxling eller förvirring? - Överlappning mellan skyddsreglerna inom varumärkesrättens intrångsbestämmelse

Sammanfattning: Trade mark law is a changing and greatly market controlled legal area where the circumstances in each individual case plays a great part in the assessment on whether there is an infringement or not. The protection of trade marks is found, among others, in vital regulations, directives and case-law from the European Union as well as in national law. The basis for this thesis is to assess and discuss whether there is an existing overlap between the rules of protection within the rule of infringement. An infringement according to the rule of protection in art. 5.1a in the trade mark directive demands a double identity between the goods and the marks. Art. 5.1b in the trade mark directive demands a likelihood of confusion of the commercial origin of the goods in order to be applicable. There is also a protection for well-known and reputed trademarks with the scope of art. 5.2 in the trade mark directive. This rule includes a protection against when a third party takes unfair advantage of, or the use of the protected trade mark is detrimental to, the distinctive character or the repute of the trade mark. When assessing the likelihood of confusion, it should be done taking all the relevant factors into consideration. The factors are similarity between marks and goods, association and the distinctive character of the older trade mark. The same assessment shall be done within the scope of art. 5.2 in the trade mark directive but instead it should focus on the risk for association between the marks. In some cases the relationship between the three rules of protection in art. 5 in the trade mark directive is clear and sometimes it is less clear. The case-law from the European Court of Justice (ECJ) has contributed to making the relationship and boundary between the rules clear but in some cases the interpretations has made the situation less clear. When trying to settle on the question of overlapping rules, the interpretation and definition of notions is what makes the situation rather unclear and had to interpret. The notion of association is included in art. 5.1b and art. 5.2 in the trade mark directive and it is concerning the interpretation of this notion where some trouble arise. There is a discussion of the notion of connection when discussing the notion of association. No or little guidance can be provided by the ECJ case-law or comments in literature about whether the notions of association and connection should be considered as the same thing or not. To sum up, I have found there to be a clear overlap between the rules of protection in art. 5.1a-b and art. 5.2 in the trade mark directive. The overlap has been created by the case-law of the ECJ and concerns overlap of rules within the scope of similarity between goods. The examination has also shown some indications of an overlap of rules concerning the notion of association and connection. However, this can only be considered as partial since art. 5.1b and art. 5.2 in the directive have different goals of protection.