A Contextual Account of the Trade Mark Functions Theory

[2018] IPQ 230

29 Pages Posted: 16 Jul 2019

See all articles by Luis H. Porangaba

Luis H. Porangaba

University of Glasgow - School of Law

Date Written: 2018

Abstract

The functions theory continues to be one of the most contentious issues in contemporary European trade mark law. In this article, I propose a reading of the CJEU jurisprudence by emphasising the theoretical distinction between trade mark use doctrine, as a defensive theory of immunisation, and functions theory operating through a contextual assessment. By focusing on confusion-based claims, I argue that the development of the functions theory is intertwined with and most productively understood alongside the increasing role of context in trade mark infringement. It should be seen as a doctrinal device that, together with a more realistic (or hybrid) construction of the average consumer, enabled infringement assessment to be infused with market realities, in response to the problems of abstraction that an expansionary trade mark doctrine had created. The emerging approach to the origin function has important lessons for how other functions ought to be assessed during infringement analysis.

Keywords: Trade Mark Law, EU Law, Trade Mark Functions, Trade Mark Use, Functions Theory, Infringement Assessment, Scope of Protection

Suggested Citation

Porangaba, Luis Henrique, A Contextual Account of the Trade Mark Functions Theory (2018). [2018] IPQ 230. Available at SSRN: https://ssrn.com/abstract=3420019

Luis Henrique Porangaba (Contact Author)

University of Glasgow - School of Law ( email )

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