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Consumer Value as the Key to Trade Mark Functionality

Fhima, I; (2022) Consumer Value as the Key to Trade Mark Functionality. The Modern Law Review , 85 (3) pp. 661-696. 10.1111/1468-2230.12709. Green open access

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This 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.

Type: Article
Title: Consumer Value as the Key to Trade Mark Functionality
Open access status: An open access version is available from UCL Discovery
DOI: 10.1111/1468-2230.12709
Publisher version: https://doi.org/10.1111/1468-2230.12709
Language: English
Additional information: This version is the author accepted manuscript. For information on re-use, please refer to the publisher’s terms and conditions.
UCL classification: UCL
UCL > Provost and Vice Provost Offices > UCL SLASH
UCL > Provost and Vice Provost Offices > UCL SLASH > Faculty of Laws
URI: https://discovery.ucl.ac.uk/id/eprint/10135768
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