Passionate about IP! Since June 2003 the IPKat has covered copyright, patent, trade mark, designs, info-tech and confidentiality issues from a mainly UK and European perspective. Read, post comments and participate!

The team is Eleonora Rosati, Annsley Merelle Ward and Merpel. E-mail the Kats here!

The team is joined by GuestKats Kevin Bercimuelle-Chamot, Jocelyn Bosse, Alessandro Cerri, Anastasiia Kyrylenko, Marcel Pemsel and Anna Maria Stein.

SpecialKats: Verónica Rodríguez Arguijo (TechieKat), Antonios Baris (Book Review Editor), Rose Hughes (PatKat) and Chijioke Okorie (Africa Correspondent).

InternKats: Asude Sena Moya and Söğüt Atilla.
Home / Jeremy Phillips / NEVER WAS THERE WRITTEN A TRUER WORD

NEVER WAS THERE WRITTEN A TRUER WORD

-

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.
NEVER WAS THERE WRITTEN A TRUER WORD NEVER WAS THERE WRITTEN A TRUER WORD Reviewed by Jeremy on Monday, May 31, 2004 Rating: 5

6 comments:

  1. AnonymousTuesday, 1 June 2004 at 15:43:00 GMT+1

    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

    victorpaletti@hotmail.com

    ReplyDelete
  2. JeremyWednesday, 2 June 2004 at 17:25:00 GMT+1

    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.

    ReplyDelete
  3. AnonymousThursday, 3 June 2004 at 12:16:00 GMT+1

    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.

    ReplyDelete
  4. AnonymousThursday, 3 June 2004 at 12:22:00 GMT+1

    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

    ReplyDelete
  5. AnonymousThursday, 3 June 2004 at 12:29:00 GMT+1

    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

    ReplyDelete
  6. AnonymousFriday, 4 June 2004 at 09:00:00 GMT+1

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

    ReplyDelete

All comments must be moderated by a member of the IPKat team before they appear on the blog. Comments will not be allowed if the contravene the IPKat policy that readers' comments should not be obscene or defamatory; they should not consist of ad hominem attacks on members of the blog team or other comment-posters and they should make a constructive contribution to the discussion of the post on which they purport to comment.

It is also the IPKat policy that comments should not be made completely anonymously, and users should use a consistent name or pseudonym (which should not itself be defamatory or obscene, or that of another real person), either in the "identity" field, or at the beginning of the comment. Current practice is to, however, allow a limited number of comments that contravene this policy, provided that the comment has a high degree of relevance and the comment chain does not become too difficult to follow.

Learn more here: http://ipkitten.blogspot.com/p/want-to-complain.html

Subscribe to: Post Comments ( Atom )
Powered by Blogger.