ABSTRACT
The Introduction discusses the reasons and purposes of a comprehensive study on the absolute refusal grounds pertaining to functional signs in EU trade mark law. Functional signs result from the nature of goods, or are necessary to obtain technical results or give substantial value to goods. The introduction begins with the story of Lego bricks which demonstrates how business protects valuable market assets (here product appearance and compatibility/interoperability of modular systems), by means of various intellectual property rights, that is, trade marks, and especially non-traditional marks, patents, designs, and copyright. The Lego story reveals the conflict of interests between competitors and trade mark owners as to the monopolization of technical or aesthetic product features which are important for the ability to trade in substitutes.
The introduction explains why the scope of the functionality exclusions should be defined through objective criteria that are distinct from the refusal grounds pertaining to distinctiveness, descriptiveness, or genericness and able to solve problems of overlapping rights. As its research methodology, the study adopts comparative results coming from the US trade dress functionality doctrine, and a specific input offered from a ‘law and economics’ perspective, including competition rules related to market definition and substitutability of products.
