Trademark use doctrine in the European Union and Japan

The scope of the regulatory power of trademark law in the market-place is constantly being tested against the new developments in technology. Today, the rights arising from the trademarks increasingly cover large portion of activities going beyond the mere misrepresentation of goods and services. Market transparency is not anymore the sole goal of trademark law. In this comparative study, we will contrast European and Japanese approach to the doctrine of trademark use, i.e. doctrine that decides whether the trademark laws extend rights to regulate a particular use of a sign prior to any considerations of confusion or unfair advantage. Evolution of the law in the two countries illustratively shows the gradual departure from origins of trademark protection, still persisting in Japan, to more advanced, but not necessarily better, systems of protection in the European Union. By comparing the trademark law of two economies, the paper aims to demonstrate how the doctrine of trademark use itself facilitates the spill-over of the extended protection – initially offered only to well-known trademarks – also to ordinary trademarks and thus leads to overall expansion of the trademark law.