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- Title
THE EXTRANEOUS FACTORS RULE IN TRADEMARK LAW: AVOIDING CONFUSION OR SIMPLY CONFUSING?
- Authors
TAN, DAVID; FOO, BENJAMIN
- Abstract
The Singapore Court of Appeal's recent decision in Staywell clearly signalled a rejection of the European "global appreciation approach" when evaluating trademark infringement. By adopting a pro-mark ethos, the Court had chosen to ignore certain factors that might affect the consumers' purchasing decision by excluding extraneous factors that could potentially negate the finding of likelihood of confusion based solely on marks-similarity and goods-similarity. This article argues that Singapore courts could consider American jurisprudence when examining "likelihood of confusion" under trademark infringement claims, such as an evaluation of the Polaroid factors, to discern factors which have an impact and effect on the consumers' purchasing decision in order to better illuminate whether the average consumer is likely to be confused. It proposes a four-stage test which integrates the US likelihood of confusion factors into the autochthonous approach advanced in Staywell. Not only is this formulation consistent with the wording of the Trade Marks Act, it would strike a better balance between protecting the proprietary right of the registered mark owner and promoting entrepreneurship and business certainty in a manner that is consonant with consumer purchasing behaviour.
- Subjects
TRADEMARK laws; STAYWELL Hospitality Group Pty. Ltd.; STARWOOD Hotels &; Resorts Worldwide Inc.; BRAND choice; CONSUMER psychology; CIRCUIT courts; ACTIONS &; defenses (Law)
- Publication
Singapore Journal of Legal Studies, 2016, p118
- ISSN
0218-2173
- Publication type
Article