Playing by its own rules? A quantitative empirical analysis of justificatory legal reasoning in the registered trade mark case law of the European Court of Justice

This article offers fresh insights into the legal reasoning of the European Court of Justice, using systematic content analysis to explore newly-gathered quantitative data on the justificatory reasoning in the Court’s judgments on registered trade mark law. Using a broad sample of trade mark preliminary rulings dating from 1996 to 2018, the analysis tests empirically how far the Court’s interpretative practices in fact conform to its own articulated standards for the interpretation of EU laws. The analysis shows that the Court has departed from those standards in a substantial portion of trade mark judgments, in circumstances suggesting strategic omission of modes of reasoning conflicting with the Court’s preferred interpretation. This raises questions over the transparency of the Court’s judgments as a public statement of its private reasoning, and the extent to which the Court’s stated approach to legal reasoning in fact constrains its interpretative discretion.