Trademark Functions in European Union Law - Also Containing a Comment on CJEU case C-129/17, Mitsubishi v. Duma

Abstract

The doctrine of trademark functions was developed and discussed under national law long before the CJEU elaborated its much-criticized approach towards the issue. However, the Court readily embraced the concept of functions in order to expand the limits of trademark law into what was previously considered as forming part of unfair competition law, thus creating a fairly consolidated body of case law combining elements of trademark law and unfair commercial practices. While the results of that strategy, all in all, can be evaluated positively, the CJEU’s utilization of the functions doctrine is flawed where, as in Mitsubishi, it results in blatant disregard for the limits of legal harmonization that has been achieved so far.