From Brand Performance to Consumer Performativity: Assessing European Trade Mark Law after the Rise of Anthropological Marketing

26 Pages Posted: 10 Nov 2015

See all articles by Luke McDonagh

Luke McDonagh

City University London - The City Law School

Date Written: December 2015

Abstract

Since the 2009 CJEU decision in L'Oréal v. Bellure, the idea that a brand's image is the property of the trade mark owner has become increasingly entrenched within European trade mark law. Brand image is now protected even where there is no harm to the underlying mark. However, the courts have largely failed to acknowledge the radical ways in which the marketplace for goods bearing trade marks has changed in the past three decades. One key shift is that businesses and marketers no longer view the brand creation process from a top‐down ‘brand performance’ perspective, but, rather, through the prisms of ‘anthropological marketing’ and ‘consumer performativity'. Through an interdisciplinary approach, this article dissects the process of brand creation in the context of European trade mark law, and argues that the law must take account of consumer agency when the question of who should own brand image arises.

Suggested Citation

McDonagh, Luke, From Brand Performance to Consumer Performativity: Assessing European Trade Mark Law after the Rise of Anthropological Marketing (December 2015). Journal of Law and Society, Vol. 42, Issue 4, pp. 611-636, 2015. Available at SSRN: https://ssrn.com/abstract=2688304 or http://dx.doi.org/10.1111/j.1467-6478.2015.00727.x

Luke McDonagh (Contact Author)

City University London - The City Law School ( email )

London, EC1V OHB
United Kingdom

Register to save articles to
your library

Register

Paper statistics

Downloads
1
Abstract Views
251
PlumX Metrics