ABSTRACT
The conventional definition of ‘the primary and proper function of a trademark’ is the one given by the U.S. Supreme Court in the leading case of Hanover Star Milling Co. v. Metcalf : ‘to identify the origin or ownership of the goods to which it is affixed’.2 This unique virtue of trademarks to identify goods and/or services constitutes the cornerstone of their justification as property rights and warrants their role within economic markets. In order to examine the sufficiency of this definition, ‘which has been followed by almost every legal regime, with but the slightest of variation and none of meaning’,3 it is essential to recognise their institutional development and the normative features that have conspired towards their economic and legal standing.
