Matters related to the protection of traditional cultural expressions (‘TCEs’) or expressions of folklore (‘EoFs’) are sensitive and intricate as a blend of legal, economic, philosophical and anthropological considerations jostle to capture their core features. This results in disparate views surrounding what should qualify as TCEs or EoFs, who should be considered their ‘owner’ (assuming that ownership per se is conceptually compatible with these items), which is the most appropriate legal protection regime and how broad their scope of protection should be. Drawing from these various accounts on TCEs, this article focuses on the interaction between TCEs and EoFs originating on the European continent and the European Union (‘EU’) trade mark legislation. Specifically, this article examines whether the limitations of the effects of trade mark rights and of the absolute grounds of refusal, as developed by the case law of the Court of Justice of the European Union, are effective in preserving the cohesion of TCEs. This article advances the thesis that registration of TCEs and EoFs as trade marks generates an imbalance between the rights of the trade mark owner and the defences available to others under the EU trade mark law framework. Furthermore, such an imbalance is likely to hinder the unfettered circulation of TCEs and undermine their original meaning. Lastly, in some cases, trade mark registration of TCEs contributes to their appropriation and misappropriation. The article concludes that, de lege ferenda, the direct exclusion of TCEs as eligible subject matter for trade mark registration is preferable to seeking a post factum remedy.

This article examines the rationales behind the selection of reputation as a prerequisite for enhanced protection in the European law on trade mark dilution. To this end, the article offers an in-depth account of the emergence of the concept of trade mark reputation in the European legislation as well as of the legislative process in itself. The examination proposed herein should prove useful when interpreting European dilution law in a purposive way. Furthermore, by looking at the historical context is which the ‘socially constructed’ concept of ‘trademark reputation’ emerged, this article seeks to shed some light on the policy considerations behind the choice of this criterion.

The analysis considers the way in which Burberry masterfully capitalized on consumers' emotional attachments to social and cultural events and technological changes since the company's establishment in 1856 to the present day. To this end, the article examines Burberry's branding strategies and the brand's image as reflected in its advertisements over a period of over 100 years. The case study highlights the increasingly important role of consumers in creating or destroying a brand's image, raising some questions about some of the assumptions with which the European trade mark law operates in the area of dilution.

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