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This response to Barton Beebe explores whether contemporary experience in Europe supports the central arguments advanced by Beebe in The Supressed Misappropriation Origins of Trademark Antidilution Law. The development of E.U. law is largely consistent with the idea that dilution law is in part an effort to install a misappropriation regime, at least insofar as the objects of protection are trademarks with a reputation (increasingly, a smaller caveat as the scope of potential trademark subject matter expands and the reputation threshold falls). This has important local consequences: if dilution law is in truth is a law against misappropriation, the Court of Justice of the European Union has greater scope to contribute to the creation of a nascent European law of unfair competition. But examining recent European case law also suggests that understanding misappropriation as part of a broader system of unfair competition may moderate the formalist critique of misappropriation as wholly indeterminate and unlimited. Understood in its unfair competition milieu, a misappropriation-based concept of dilution retains some potential for measured delineation of the edges of protection.

This Chapter analyses one harmonisation project within European intellectual property law, namely, the recent development of trade mark law within the European Union (EU). It highlights several characteristics of trade mark harmonisation within the European Union. First, harmonisation of national trade mark laws in the Union has been “tight”. In this regard, for reasons that make sense in the European political and legal theatre, it is different from the international model of so-called “minimum rights” harmonisation that drove convergence of trade mark norms for the preceding century. Second, the Trade Mark Directive (with the aid of the Court of Justice and national courts) has effected almost total harmonisation of substantive trade mark law, belying the claims of limited harmonisation that are found in the recital to that Directive. Third, the Court of Justice has exhibited a tendency to limit any room for member state manoeuvre, for example, finding that even optional provisions of the Directive must be given a single European meaning. The Court has paid little attention to concerns of subsidiarity. Finally, additional pressure to find single European solutions results from the existence of a Trade Mark Regulation that creates a counterpart unitary regional right (the Community Trade Mark, or CTM) and attendant EU institutions to administer and enforce that right. This parallel EU-level regime tends to reinforce the idea that trade mark law has been wholly Europeanised, and exerts pressure on the content of Directive-driven national law because the demands of vertical coherence have trumped the potential benefits of regulatory competition between national and regional regimes. In short, there has over the past twenty years been an extensive and deep Europeanisation of trade mark law. But this in turn raises ongoing questions about how best to develop harmonised European principles, because harmonisation is a dynamic lawmaking process and not a static legislative instrument. In this Chapter, I consider how the process of harmonisation has affected the development of optimal principles of trade mark law, an analysis that is necessarily informed by substantive preferences. It is only by measuring harmonisation by reference to some form of substantive metric that a full assessment of the harmonisation process can be made. I suggest that it important to recognise the important role of national courts in the development of EU trade mark law (in part because of the nature of the field of law), and that paying attention to national legal traditions would assist the Court of Justice in improving the quality of European trade mark law.