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Monday, 31 May 2004


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.


Anonymous said...

The essential function of a trade mark is to avoid confusion.

(Trade marks can't stand confusion. Even a likelihood of confusion is thought to be lethal: it ravages and destroys the trade mark's essential function. Only very strong trade marks may survive confusion, but even their owners usually don't take any risks)

Victor Paletti

Jeremy said...

I'm not sure you can say that avoiding confusion is the prime function of trade marks any more after the ECJ's recent ruling in Gerolsteiner. There the court seems to say that confusion must be tolerated, if it's an honestly caused confusion that fits within the defence to infringement under Art.6 of Directive 89/104.

Anonymous said...

The fact that some confusion must be tolerated does not necessarily mean that avoiding confusion cannot be the prime function of a trademark. The prime function of a car is to move from a to b, but it is very likely that some stopping must be tolerated on the way to b.

But I do think that 'to avoid confusion' is more or less the same as Arsenal's 'to guarantee the identity of origin' and also more or less the same as 'providing a monopoly'. The general idea seems to be that a trademark should guarantee that what you see is what you get.

Anonymous said...

How can you define a trade mark in the post modern world?

Fundamentally, a TM is a bare sign, a signifier. What it signifies then depends much upon the nature of the TM. It's like a mental marker, associated with numerous other mental junk (congitive artifacts) as a result of advertorial programming or experiential reality: the goal of the TM proprieter to use the former to constrain and guide the latter, and the purpose of the latter to support commercial outcomes (identify product, develop values and culture, etc).

Pseudoanonymous: BL 354213

Anonymous said...

Of course, it is supposed to signify origin and differentiate between undertakings (according to "classical theory" as esposed by s1 of TMA 94), but in "modernist perspective" it has clearly surpased that.

Call it "a bringer of mind"

Pseudoanonymous: BL 354213

Anonymous said...

The essential function is Seduction(and we want them to seduce us).

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