Spare Parts, Repairs, Trade Marks and Consumer Understanding

6.1

The Idea of a Survey

The idea for this research was born out of the need to investigate changes in consumer perception of use of the “original manufacturer’s” trade mark in the context of spare parts commercialisation. The study concerned how commercial communications relating to spare parts in the automotive sector, which has benefited the most from the repair clause, were understood. It was conducted in only one EU Member State, Poland, where the repair clause was introduced into design law in 2007.Footnote 79 Moreover, old cars in need of repair dominate the Polish automotive market,Footnote 80 and Polish consumers are not as wealthy as consumers in Western European countries. Many used and damaged cars are still imported from Western Europe; in Poland, after thorough repairs, they are given a “second life”.

The aim was to learn about the perception and judgement of consumers who might actually be interested in buying spare parts for a particular brand of vehicle and be familiar with that brand, i.e. car owners of that brand, and to compare this with the understanding of spare parts professional retailers and repair workshops that make actual use of the repair clause in accordance with its purpose. The study sought to determine how the presence of the original manufacturer’s mark on a part, or in connection with its commercialisation, affects perception of the commercial origin of the spare part and quality expectations. In addition, the survey was designed to examine the impact of trade mark use on perceptions of the quality of the replacement part among the respondent groups surveyed and on their willingness to purchase.

Empirically tested reality cannot be the only decisive factor in the final assessment of an individual situation in trade mark law. In this case, however, the fundamental resistance to and lack of in-depth reflection on the importance of actual consumer perception encouraged us to construct and conduct research. Learning about these realities may be useful when market realities are subject to dynamic changes.

6.2

Method

6.2.1

Participants

Two studies were conducted on different groups of respondents.Footnote 81 The first study was run online on the purposive sample we arrived at through the portal for automotive professionals, MotoFocus.pl. In this way, we were able to assemble the group surveyed, consisting of 122 professional repairers and retailers, i.e. car service stations (12.3% of the respondents), workshops (50%), spare parts distributors (22.1 %), spare parts stores (8.2 %), and other professionals from the automotive branch, that is a group well oriented in the realities of the market and the spare parts industry, and dealing professionally with spare parts. The study was conducted on Typeform, a web-based platform for creating online surveys.Footnote 82

The second study was run online by the Ariadna Nationwide Research Panel, a Polish counterpart of MTurk, which specialises in polling large samples for the purpose of research.Footnote 83 Purposive sampling was used to reach a group of 172 ordinary car owners; the survey was narrowed down to owners of cars of a specific brand (whose trade mark was an element of the spare part or appeared in the context of spare part commercialisation).

6.2.2

Procedure and Materials

The material presented to participants in both studies resembled typical information available at online auctions. The questionnaire was divided into two parts. Participants were asked to rate an alloy rim in the first part and a grille in the second part, with both spare parts being specifically for selected Audi models.Footnote 84 Next to the graphical presentation of each spare part there was a description of the product. The information included the following data: (1) the name of the product (alloy rim or grille, respectively) and models of car to which it was applicable; (2) the price per unit of the product, which was the average price of a non-original spare part, much lower than the price of the original part; (3) the basic technical parameters: dimensions, the OEM number (i.e. the catalogue number of the original spare part to which the part offered was an equivalent); (4) the additional information that the spare part offered by the trader (a fictitious seller name was given in the survey) reproduced the Community design registered for AUDI AG and was marketed under Art. 110 of EU Regulation No. 6/2002 exclusively for repair purposes. This was followed by the name of the independent manufacturer of the spare part and information about the part’s approval in accordance with UNECE Regulation E11124R-001013, which is relevant for the part’s safety assessment.

The experimental “between-groups” design was used for the studies. Participants were randomly divided into four groups, which varied in the graphical presentation of the spare parts (grille and alloy rim). The first version (Group 1) included a product with a faithfully reproduced original trade mark as an element of the appearance of the spare part. In the second version of the study (Group 2), the replacement parts were devoid of any trade mark as an element of their appearance. In the third version (Group 3), the trade mark appeared as a logo in full graphics and colours next to the spare part which, as such, was devoid of any trade mark. In the fourth variant (Group 4), a trade mark other than the “original”, i.e. the trade mark of an independent spare part manufacturer, was affixed to the alloy wheel. In the case of the radiator grille, however, the last variant related to a spare part with space to mount the car manufacturer’s original figurative trade mark (emblem) that reproduced the appearance of that trade mark. Since radiator grilles with a different trade mark are not offered on the market (unlike in the case of rims and hubcaps), the study also concerned one particular type of spare part, i.e. a grille with space to mount the car manufacturer’s original figurative trade mark. Consumers saw the same general product information in all versions of the study.

Grilles

The following additional product information was presented to all groups tested:

FRONT BUMPER GRILLE AUDI A3 A6

Price per unit: 359 PLN

Description:

Catalogue No. of part: 4F0853651AN

Weight (with packaging): 2 kilos

The grille reproduces the Community Design registered for AUDI AG and is offered by EParts Ltd. under Art. 110 of Regulation EU 6/2002 exclusively for the purposes of repair.

Manufacturer AUTO Parts Ltd.

Alloy wheel rim

The following additional product information was presented to all groups tested:

ALLOY WHEEL RIM AUDI A3 A4 A5 A6 A8

Price per single unit: 599 PLN

Description:

Diameter: 18”

Width: 8”

OEM: 8K0601025CK

The alloy wheel rim reproduces the Community Design registered for AUDI AG and is offered by Eparts Ltd. under Art. 110 of Regulation EU 6/2002 exclusively for the purposes of repair.

Manufacturer WSP Italy.

APPROVAL UNECE R124 E11124R-001013

Most questions in both studies were identical. After being presented with the image of the spare part (according to the variants described above), respondents were asked to rate: (1) the quality of the part; (2) the strength of the material used for the part, and (3) the appearance of the part. Then they were asked whether they would order this part for their workshop/shop or their own car, depending on the group of respondents (4). Finally, the respondents were requested to name a spare parts manufacturer (5). This was framed as an open-ended question to avoid suggesting answers, and respondents could enter any name they wanted. After answering this question, respondents were informed about the true commercial origin of the spare part in line with the general information about the product that had been presented to them in advance. Once in possession of the information pertaining to the actual origin of the product from an independent spare parts manufacturer, respondents were interviewed as to (6) whether, in their opinion, other consumers would recognise that it was not an original Audi part; (7) whether they would recommend this part to other customers; and (8) how they evaluated the quality of the part compared with the original Audi part.

The responses related to quality evaluation were measured on a 7-point Likert scale from 1 (“definitely bad”) to 7 (“definitely good”). The answers to other questions (willingness to buy the spare part or willingness to recommend it) were also measured with the Likert scale from 1 (“definitely no”) to 7 (“definitely yes”).

6.2.3

Results

To analyse the results from both studies, a one-way MANOVAFootnote 85 was carried out to compare the effect of different forms of the use of a trade mark in the context of spare parts commercialisation on how respondents rated the parts and how willing they would be to recommend purchasing the parts. The results are presented in Tables 1–4, separately for each spare part type (grille and alloy rim), and split into two studies, with professionals and end users. Identification of the origin of the spare part in all variants surveyed was broken down into respondents who identified Audi as the manufacturer of the part; respondents who identified an independent manufacturer (by name, with variants of names other than Audi appearing here); and those who did not remember who the manufacturer of the spare part was.

Grille ratings by Audi car owners

The analyses showed that differences in rating product quality were not significant in any of the variants. Nor were there any differences in willingness to buy and recommend the part to other consumers (F(18, 458) = .947, p = .962). Regardless of the graphic presentation of the grille, consumers rated this part similarly (even after being informed that it was not a spare part made by Audi). It should also be noted that, in all groups, the part presented was rated relatively high (average above 4 on a 7-point scale). The means for each question are presented in Table 1.

Full size table

As regards the commercial origin of a grille, the highest level of responses pointing to Audi as the manufacturer of the spare part (although relatively low) was for the use of the original trade mark on the spare part (about 29%) and referential use of a full graphic image of the original mark (37.5%), with an equally high number identifying an independent manufacturer as the source of the spare part. In the case of the Audi logo space, the number identifying the independent manufacturer of this spare part (37%) outweighed that identifying Audi (26%). For end users, the lack of a trade mark on parts reduced the number identifying Audi as a parts manufacturer (16%).

Alloy rim ratings by Audi car owners

Similar to the grille analyses, the analyses for the alloy rim showed insignificant differences in product quality ratings. Nor were there any differences in willingness to buy and recommend the part to other consumers (F(21, 645) = .899, p = .593). Regardless of the graphic presentation of the alloy rim, consumers rated this part similarly (even after being informed that Audi did not make a spare part). It should also be noted that, in all groups, the presented part was rated relatively high (average above 4 on a 7-point scale). The mean averages for each question are presented in Table 2.

Full size table

When it came to identification of the commercial origin of the alloy wheel by end users, i.e. owners of Audi cars, the situation was similar to that for the grille. A high number identified Audi in the case of the alloy with the Audi logo as an element of appearance (31%), with the highest number in the case of the referential use of the full graphic Audi logo next to the spare part (40%). Interestingly, a relatively high number identified Audi also for the replacement part with an independent manufacturer’s mark (that of WSP) as an element of the appearance of the part (about 24%). Even where there was no trade mark on the spare part, respondents pointed to Audi as the manufacturer of the part (10%), probably based on the verbal description of the purpose of the spare part, which specified the Audi models that the part fitted.

Grille ratings by workshops and professional retailers of spare parts

The analyses of grille ratings by workshops and professional retailers of spare parts showed insignificant differences in how product quality was rated. Nor were there any differences in willingness to buy and recommend the part to other customers (F(21, 322) = .578, p = .932). Regardless of the graphic presentation of the grille, professional retailers and workshops rated this part similarly (even after being informed that Audi did not make a spare part). It should also be noted that, in all groups, the part presented was rated lower than by the car-owner group but still relatively high (average mostly above 3.5 on a 7-point scale). The mean averages for each question are presented in Table 3.

Full size table

The number of respondents pointing to Audi as replacement part manufacturer was significantly lower than for car owners. An independent spare parts manufacturer was predominantly identified in every variant surveyed (results ranged between about 65% to 80%). Interestingly, regardless of whether or not there was a trade mark on the part, the same number of respondents pointed to Audi as its manufacturer (14%). A relatively low percentage pointed to Audi when the Audi logo was used in a referential way (10%), which shows that the group of professional respondents perceives the presence of this mark in close proximity to the spare part itself differently than car owners do. In the case of grilles with space for the Audi logo, 21% of respondents identified Audi as its manufacturer.

Alloy rim ratings by workshops and professional retailers of spare parts

Similar to the grille analyses, those for the alloy rim showed insignificant differences in product quality ratings. Nor were there any differences in willingness to buy and recommend the part to other customers (F(21, 322) = .761, p = .767). Regardless of the graphic presentation of the alloy rim, professional retailers and workshops rated this part similarly (even after being informed that Audi did not make a spare part). It should also be noted that, in all groups, the alloy rim was rated lower than by the car-owner group but still relatively high (average above 3.5 on a 7-point scale). The mean averages for each question are presented in Table 4.

Full size table

In the case of the alloy rim, respondents in all variants overwhelmingly identified the replacement part as originating from an independent manufacturer (75–93%). Only in the case of parts with a mark as an element of the appearance of the part did 3% of respondents identify Audi. However, in the absence of a trade mark on the part and in the case of referential use of the full logo of the original manufacturer, none of the respondents pointed to Audi. Interestingly, in the case of an alloy wheel with an independent manufacturer’s trade mark (WSP), almost 11% of respondents pointed to Audi as the product’s commercial origin.

6.2.4

Conclusions from the Study

The study replicated a situation in which an independent manufacturer and seller of spare parts observed the basic rules of “fair play” in the marketplace, informing about a product’s true origin and the repair clause conditions outlined in Art. 110 CDR, in line with the Acacia guidance.Footnote 86 It reproduced the most typical and, at the same time, most controversial cases of trade mark use in the context of the commercialisation of spare parts to which CJEU case-law has already referred or will refer soon.

In the first version, the spare parts reproduced the original trade mark of the car manufacturer, so the product embodied the fundamental problem of using the trade mark as a necessary element of the appearance of the spare part.Footnote 87 The image of the spare part in the second version was utterly devoid of any trade marks. Thus, this was a situation in which the replacement part implemented the guidance of the CJEU judgment in the Ford case, according to which a trade mark cannot be used without permission of its owner.Footnote 88 In the third version, the trade mark (with a graphic logo) of the original manufacturer of the spare part appeared in close proximity to the product (a spare part without a trade mark). The use of the mark in this context was intended to be informative (so-called “referential use” to provide information about the purpose of the spare part).Footnote 89 For the holder of the “original” trade mark, however, it could also be considered as going beyond what was necessary to convey such information, as the full graphical image of the logo was used. In the fourth and final version, the trade mark of the independent manufacturer was affixed to the spare part, slightly changing the appearance of that part; the part was no longer identical to the original one, as in the factual situation of the Acacia case.Footnote 90 In the case of the grille, the study concerned a grille with a space intended for mounting the “original” figurative trade mark (emblem), which, due to its contours, reproduced the outline of the trade mark. A similar situation is at issue in C-334/22, Audi.Footnote 91 These types of parts are also offered on the market for different brands of cars. Users buy the emblem themselves and mount it in the space provided. Unlike with rims and hubcaps, radiator grilles with a different trade mark of an independent manufacturer are not offered on the market.

One of the primary objectives of the study was to see whether perception of the trade mark in these variants (and its effects on quality ratings and willingness to buy and recommend the spare part) differed according to the targeted public for spare parts – professionals, who purchase them to use them for their intended purpose, and end users of the parts, i.e. owners of cars of a particular brand. In general, repairers and professional retailers are highly attentive and aware, being very familiar with what activities are allowed in the field of spare parts manufacturing and trade. They know about the existence of the repair clause in the design regime and about the differences in price and quality between OEM spare parts (those manufactured by original equipment manufacturers), OES spare parts (those manufactured by official equipment suppliers) and IAM parts (those manufactured by independent aftermarket manufacturers). The latter, if they reproduce a Community design, are offered only to professional repairers. The number of customer complaints that professionals receive usually highlights differences in quality. Meanwhile, knowledge and understanding of market messages by end users of spare parts can differ significantly, as such users do not usually replace a spare part themselves, but rather contract professionals to do so, relying on information about the origin, price and quality of the part provided by the repair garage or auto service station.

The results of the study confirm some noticeable differences in both identifying the commercial source of the parts and rating their quality. Regarding the first issue, the questions sought to establish how respondents understood the commercial source of goods and whether the trade mark used in this context functioned as a source identifier or whether its origin function was neutralised. The variants in use or lack of use of the “original” trade mark were to test how its presence in a particular form or its absence might affect how product origin was perceived.

End users – i.e. Audi car owners – were more likely than professional dealers and workshops to be misled about the origin of spare parts in virtually all variants. Still, the percentage pointing to AUDI was relatively insignificant. The number of respondents pointing to AUDI as the manufacturer visibly increased when a figurative trade mark appeared on or around the spare part. Professional retailers and workshops, on the other hand, showed almost no propensity to be misled as to origin – the percentage indicating AUDI as the manufacturer of these parts was almost identical both when the part was offered without the mark and when the trade mark appeared on the part or was used for referential purposes. This might lead to the conclusion that professionals perceive the trade mark of the original manufacturer of a spare part in the context of the sale of independently sourced spare parts as a description of characteristics of the goods (especially its purpose) rather than as an indication of origin. Overwhelmingly, professional parts sellers indicated that the part (in all variants presented) came from an independent source. For car owners, more responses suggested that they did not remember who the manufacturer of the replacement part was, despite a clear hint to that effect in the product description presented.

As regards the second aim of the study, i.e. quality ratings and willingness to buy or recommend the part, quality expectations were presumed to vary depending on the method of use of the “original” trade mark. Meanwhile, the results are fairly similar in terms of the part’s quality rating and the level of willingness to buy regardless of the type of trade mark use in the context of the commercialisation of the replacement part. This reveals a certain level of immunity to the presence of the original car manufacturer’s trade mark. In both groups, spare part quality ratings did not significantly deteriorate once the respondents were informed of the actual origin. The ratings are slightly lower for car owners, confirming their greater bias in favour of spare parts that originate with the original car manufacturer. These results may provide useful information for assessing whether other trade mark functions, mainly those relating to quality and investment, are seriously jeopardised by use of a trade mark in the context of the commercialisation of spare parts; they show that it is difficult to see such an impact in this case.

The purpose of the research was not to provide purely empirical arguments to resolve specific cases of trade mark use in the context of spare parts commercialisation. Nor do we believe that trade mark adjudication should be based on purely empirical inquiries. However, its results might serve as a starting point for broader debate about trade mark policy in the context of an important issue and inspire valid normative considerations leading to a revision of selected rigid concepts and apodictic assumptions in trade mark law, with the ultimate goal of leading to normative decisions that take into account, above all, the objectives, values and interests that come together in an individual case. The context of spare parts and the right to repair provides a solid normative argument for the necessary revision and expanded perspective.