The "essential function" of the trade mark is a concept in European trade mark law that has featured prominently in European Court of Justice jurisprudence since the 1980s. We all know that the essential function is
"to guarantee the identity of origin of the marked goods or services to the consumer or end user by enabling him, without any possibility of confusion, to distinguish the goods or services from others which have another origin" (Case C-206/01, Arsenal v Reed, at para.48).One final year Law student at University College, London, was not impressed by this. When answering a question in this year's Finals, he explained that the "essential function" of the trade mark was
"to enable the proprietor of a trade mark to obtain a monopoly in it".Who says students are too steeped in theory to be able to understand the practicalities of commercial life!
The IPKat asks if anyone browsing the blog has a definition of the "essential function" that can cap this one for accuracy and succinct expression. If so, please post it below. A small prize is on offer for the best non-anonymous suggestion.