Why is the Functionality Doctrine in Trade Mark Law worth Advanced (Re)Consideration?

Abstract

This article considers the necessity of preparing a comprehensive study, over absolute refusal grounds pertaining to functional signs set in the EU trademark law, which would meet the business community’s need to register non-traditional trade marks. The study aims to define the exact scope of the aforementioned exclusions through objective criteria that can render them a workable tool, distinct from refusal grounds pertaining to distinctiveness, and able to solve problems of overlapping rights. As its specific research methodology, the study adopts comparative results coming from the US trade dress functionality doctrine, and a specific input offered from a ‘law and economics’ perspective, including competition rules related to market definition and substitutability of products.

Research on the Differences Between the Laws Designed to Protect Brands and Traditional Trademark Laws

“…A brand may consist of various elements, such as brand identity, brand value proposition, brand personality, brand positioning, brand promise, and brand experience [1].…”

“…Brands are valuable and influential intangible assets that create and sustain competitive advantage in the market. However, brands are also vulnerable to various forms of infringement and abuse, such as counterfeiting, piracy, unfair competition, or cybersquatting [1]. Therefore, brand protection is an important and challenging issue for brand owners and users, as well as for society and the economy.…”