Edited by Susy Frankel
Chapter 7: Alternative products as a factor in determining the functionality of trade marks – how the criteria from the USfunctionality doctrine could be applied in EU law
This chapter focuses on the scope and interpretation of three legal provisions set of EU trade mark law which serve as absolute grounds for denying registration for functional product features. It explores whether certain criteria formulated in the US utilitarian and aesthetic functionality doctrine, relating to the protection of trade dress, may be helpful for the interpretation of these EU exclusions. The analysis starts from catching similarities between certain aspects of EU and US policy – that of keeping free access to features important for market competition. It is followed by examining EU tests developed in cases of utility and aesthetic functionality, with a parallel look into different US factors of assessment. The paper advocates for a market-oriented approach, based on the availability of alternative and substitutable products meeting customers’ needs.
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