Following the Levi Jeans case, the European Court judgment in Reed v Arsenal F.C. brings the once esoteric subject of European trade mark law blinking into the public spotlight again. Assuming that the court has given the English High Court (which favoured the street trader) no “wiggle room”, football clubs (soon to be subject to potential criminal penalties in England if they agree to fix prices) may soon be able to rid themselves of low price, low quality competition with the help of the criminal law – as they have in the past.
Once the dust has settled, however, it is not clear that football clubs’ joy will be shared by all. The European Court decided that once a competitor uses a mark in the course of trade that is identical to that of the trade mark owner, his liability is virtually absolute. A clear disclaimer of authenticity (which impressed the English High Court) is irrelevant: the street trader will infringe, even if there is only a possibility that some consumers who see the goods away from the point of sale might believe them to be produced by the owner of the mark. The European Court clearly believes that any other conclusion would undermine trade marks by weakening the guarantee of origin which is the raison d’etre of the monopoly right.
Numerous questions arise from the judgment. Is a criminal prohibition really appropriate in this sort of situation? Is it going to be enforced equally throughout Europe? Are we convinced that trade mark owners should have monopoly rights even though most consumers see ‘tat’ for what it is? Shouldn’t consumers, especially the poor, have an alternative to expensive branded goods especially when competition between retailers has a history of being rigged?
What the European Court is saying (somewhat dogmatically) is that the level of intellectual property protection should be very high in Europe and that it should be uniform (ignoring potential enforcement inconsistencies). Now we know that this is the position, at least an informed public debate might be possible. When it takes place, it will doubtless be noticed that European community arguments about policy choices are often tied up with questions of who has control. To judge by the Arsenal case, the European Court is clearly at the top of the league at the moment; however the national courts sometimes fight back – especially when their views are rather loftily dismissed. Moreover, in the trade mark area, the European Court has been known to overturn its own judgments. So this battle may run and run.