Property in Brands

28 Pages Posted: 13 Jun 2013

See all articles by Dev Saif Gangjee

Dev Saif Gangjee

Faculty of Law, University of Oxford

Multiple version iconThere are 2 versions of this paper

Date Written: April 12, 2013


This paper traces the emergence of a new res or object of protection within European trade mark law. Proprietary rights in trade marks have conventionally been premised upon the mark’s ability to communicate useful information; namely, indicating the commercial source of goods or services, also referred to as the essential function of a trade mark. Granting exclusive rights to control the use of a mark preserves its ability to reliably signal origin. Contemporary EU trade mark law goes further and protects the more expansive brand dimension associated with a successful trade mark. The Court of Justice of the European Union (ECJ) has enabled this by recognising not only the origin indication function of marks, but also their advertising, investment and communication functions. The brand is a remarkably elusive and protean, yet undeniably valuable, intangible. So what are the doctrinal tools and techniques available to courts, registrars and legal practitioners, enabling them to work with such elusive subject matter? What are the corresponding assumptions about brand creation and sustenance that reinforce these techniques? And can they be reconciled with recent conceptualisations of branding emerging from marketing and consumer studies research? Since brand protection is a controversial development within European trade mark law, this paper unpacks the manner in which the brand is conceived of within European legal doctrine. The ECJ situates branding within a one-way broadcast model, while contemporary marketing research emphasises that brand formation is dialogic and iterative. The ECJ’s approach to brand propertisation is therefore not only inaccurate in presuming single author brand creation, but also deeply troubling since it marginalises consumer agency and reinforces the exploitation of their immaterial labour through the instrumentality of trade mark law.

Suggested Citation

Gangjee, Dev S., Property in Brands (April 12, 2013). LSE Legal Studies Working Paper No. 8/2013. Available at SSRN: or

Dev S. Gangjee (Contact Author)

Faculty of Law, University of Oxford ( email )

Cowley Place
Oxford, OX4 1DY
United Kingdom

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