The Court of Justice's Protection of the Advertising Function of Trade Marks: An (Almost) Sceptical Analysis

(2011) 6 Journal of Intellectual Property Law and Practice 325

13 Pages Posted: 18 Jul 2012

See all articles by Ilanah Simon Fhima

Ilanah Simon Fhima

Institute of Brand and Innovation Law, Unversity College London

Date Written: July 18, 2012

Abstract

In a number of high-profile cases, the Court of Justice has focused its attention on the advertising function of a trade mark. Some have seen this as giving overly-wide protection to trade mark owners at the expense of their competitors and free speech.

An analysis of the Court of Justice’s trade mark jurisprudence on topical issues including parallel importation, dilution and advertising keywords reveals that the Court has been willing to recognise that trade marks have an advertising function as a matter of principle. However, in practice, it has been reluctant to actually recognise that that advertising function has been harmed.

Concentrating on harm to the advertising function is most likely a false target. Instead, attention should be focussed on unfair advantage which is likely to lead to wider, and potentially unbalanced, trade mark protection.

Keywords: trade mark, trademark, dilution, advertising function, parallel importation, advertising keywords, CJEU, law, EU law, L'Oreal v. Bellure

JEL Classification: K00, O34

Suggested Citation

Simon, Ilanah, The Court of Justice's Protection of the Advertising Function of Trade Marks: An (Almost) Sceptical Analysis (July 18, 2012). (2011) 6 Journal of Intellectual Property Law and Practice 325. Available at SSRN: https://ssrn.com/abstract=2112000

Ilanah Simon (Contact Author)

Institute of Brand and Innovation Law, Unversity College London ( email )

Gower St
London WC1E OEG, WC1E 6BT
United Kingdom

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