The Siren Song of the Subtle Copycat – Revisiting Trademark Law with Insights from Consumer Research

The architecture of trademark protection systems rests on the assumption that brand imitation strategies are particularly harmful when they seek to achieve a high level of similarity by copying specific trademarked features of the original brand. Marketing research, however, shows that this assumption is doubtful. Subtle, theme-based imitation strategies – aiming at a modest degree of similarity – may allow copycats to garner greater profits and manipulate consumers’ purchasing decisions. Like an enchanting siren song, they may lure customers away from the original products of brand owners. Against this background, the paper discusses the question whether trademark law should be recalibrated. To lay groundwork for this discussion, the analysis outlines central functions of trademarks in today’s market economy before describing, on the basis of EU trademark law, the traditional approach to copycat strategies from a marketing and legal perspective. Introducing insights from recent marketing research, the paper explains why subtle, theme-based strategies may be more harmful than blatant, feature-based copying. The further examination places this insight in a legal context. Contrasting the empirical findings of marketing research with traditional assessment schemes in EU trademark law, it becomes apparent that there is a remarkable mismatch between legal theory and market reality. Current trademark provisions are not aligned with “real life” consumer perception. As a result, copycats with a subtle imitation strategy remain under the radar of applicable infringement tests. This dilemma is taken as a starting point to discuss the need for reforms in trademark law.