Consumer Value as the Key to Trade Mark Functionality

Abstract

AbstractThis article identifies the central role of consumer perceptions of value in design and marketing literature. Relying on this literature, it proposes changes to our legal understanding of functionality, the doctrine denying trade mark protection to technical and other features traders must access in order to compete. Marketing and design literature explains that consumers approach different values inherent in products holistically, influenced by emotional resonance. Thus, in the context of a developing body of interdisciplinary trade mark scholarship, I advocate a move away from trade mark law's formalistic approach to functionality, where technical and aesthetic product values are treated as distinct. Instead I argue for a single consumer‐focussed competition‐based functionality exclusion, centred around the ‘substantial value’ exclusion to registration.