The linguist as expert witness in the community trademark courts

Resumen

This paper explores the way the linguist as expert witness may smooth the progress of legal decision-making in cases involving a Community trademark (CTM) dispute. The study hypothesizes that the seesaw of court decisions found in CTM disputes could be avoided, if linguists were called upon as experts by the courts. Therefore, the discussion attempts to provide an answer to the following research questions: (a) Can forensic linguists provide relevant evidence in CTM litigation? (b) If so, what is the nature of this evidence? And (c) is it possible to determine and measure the strength of mark and the likelihood of confusion between two marks in dispute? In order to answer these research questions, an authentic case was thoroughly examined. This involved revisiting the CTM litigation between the earlier German national trademark Respicort (Mundipharma AG) and the international trademark Respicur (Altana Pharma AG). The record showed no indication that a linguist had participated in this case during the eight years the legal dispute lasted. For purposes of analysis, the parameters most commonly accepted by Community trademark courts were employed in the forensic linguistic review of the Respicort v. Respicur case, namely strength of mark and likelihood of confusion.