Queen Mary Journal of Intellectual Property

Revisiting trade marks

Michel Vivant

Keywords: trade marks, functions, indication of origin, function ‘of attraction’, sign as value, protection


The case law on trade mark rights is arguably more sophisticated in Europe than in the US. Of course, it is possible to analyse the case law from a strict, positive point of view; however, considering what the case law reveals, it is more interesting to adopt a forecasting approach. In this approach, the trade mark appears as having two real functions: indication of origin and function ‘of attraction’. Today, the sign by itself has its own value (perhaps not the case for all trade marks but certainly to some in addition to ‘well-known’ marks). The consumer buys into a dream. Lawyers must not ignore that. The assertion of this short paper is that these two functions must receive protection and that this must be achieved within trade mark law if the law is to be in harmony with society.

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