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Confusion in a legal regime built on deception: the case of trade marks

Dent, C.ORCID: 0000-0002-1801-713X (2015) Confusion in a legal regime built on deception: the case of trade marks. Queen Mary Journal of Intellectual Property, 5 (1). pp. 2-27.

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The law of trade marks is, now, reliant on the notion of 'confusion' between marks for the purposes of denying registration and of assessing infringement. Yet, this area of law is founded on the notion of deception in the nineteenth century, a plaintiff had to show that the infringing mark would deceive consumers. This article takes a broad, socio-legal, approach to explore the factors that contributed to the introduction of 'confusion' into the legal discourse. These include the creation of the registration system itself; developments in the case law around the notion of 'deception', the breakdown of the rigidities in the law and the changes in how the system 'saw' the individual. This latter development involved the rise of utilitarianism, the acceptance of the 'internal life' of individuals and their possession of (potentially wrong) knowledge.

Item Type: Journal Article
Murdoch Affiliation(s): School of Law
Publisher: Edward Elgar Publishing Ltd
Copyright: © 2015 The Author
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