Function Theory and International Exhaustion – Why It Is Wise to Confine the Double Identity Rule to Cases Affecting the Origin Function

European Intellectual Property Review, Vol. 36, No. 8 (2014), pp. 518-524

11 Pages Posted: 19 Nov 2013 Last revised: 21 Aug 2014

See all articles by Martin Senftleben

Martin Senftleben

VU University Amsterdam - Faculty of Law

Date Written: November 19, 2013

Abstract

In the current debate on the amendment of EU trademark legislation, the European Commission proposed to confine the so-called "double identity" rule – regulating protection against the use of identical signs for identical goods or services – to cases affecting the origin function. This proposal has been criticized for various reasons. A closer analysis shows, however, that by putting an end to the unpredictable and inconsistent function theory developed by the CJEU, it would substantially enhance legal certainty for both trademark owners and users. Moreover, it would avoid imbalanced protection of a trademark’s goodwill functions outside the specific system of anti-dilution protection for marks with a reputation. Against this background, the counterarguments do not have much weight. In particular, the proposal is unlikely to lead to a system of international exhaustion in the EU.

Keywords: trademark law, Community Trade Mark Regulation, EU Trade Mark Directive, function theory, exhaustion, comparative advertising, keyword advertising, freedom of expression, freedom of competition

Suggested Citation

Senftleben, Martin, Function Theory and International Exhaustion – Why It Is Wise to Confine the Double Identity Rule to Cases Affecting the Origin Function (November 19, 2013). European Intellectual Property Review, Vol. 36, No. 8 (2014), pp. 518-524. Available at SSRN: https://ssrn.com/abstract=2356772 or http://dx.doi.org/10.2139/ssrn.2356772

Martin Senftleben (Contact Author)

VU University Amsterdam - Faculty of Law ( email )

De Boelelaan 1105
1081 HV Amsterdam
Netherlands

HOME PAGE: http://www.rechten.vu.nl/senftleben

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