Trade Mark Functions in Business Practice: Mapping the Law Through the Search for Economic Content

Abstract

The functions theory seemed to herald the modernisation of European trade mark law through the recognition and protection of trade mark functions other than source-identification, namely those of quality, advertising, investment and communication. However, more than a decade into its inception, the doctrinal edifice of trade mark functions remains far too underdeveloped to provide the required degree of legal certainty in everyday practice. Despite scholars’ and decision makers’ efforts to give content to these functions, their economic dimension remains largely unexplored. This article seeks to fill this gap in trade mark scholarship by exploring how each function maps to different branding strategies deployed by firms in the course of trade. This will bring much-needed clarity to the field by allowing to better delimit the contours of each function. Perhaps more importantly, it can provide the required analytical tools to better frame each function within its market context and, thus, for improved fine-tuning of the protection afforded to trade marks under the functions theory.