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

Journal of Law and Society (2015) 42(4), 611-636

25 Pages Posted: 27 Nov 2016

See all articles by Luke McDonagh

Luke McDonagh

City University London - The City Law School

Date Written: December 1, 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.

Keywords: trademarks, brands, law, anthropology, performativity

JEL Classification: K00, K10

Suggested Citation

McDonagh, Luke, From Brand Performance to Consumer Performativity - European Trade Mark Law after the Rise of Anthropological Marketing (December 1, 2015). Journal of Law and Society (2015) 42(4), 611-636. Available at SSRN: https://ssrn.com/abstract=2874940

Luke McDonagh (Contact Author)

City University London - The City Law School ( email )

London, EC1V OHB
United Kingdom

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