ABSTRACT
This chapter explores the meaning of ‘public interest’ for the purposes of defining the rationale underlining the EUTM functionality rules. The concept of public interest has been developed by the CJEU jurisprudence and it is distinct from the grounds of public policy or morality. Part 2.1. examines how the criterion of public interest – and the ‘need to keep free’ – has been applied to the assessment of the refusal grounds pertaining to distinctiveness, descriptiveness, and customariness. The second part focuses on the definition of public interest for functionality purposes, with regards to both technical/utilitarian and aesthetic subject-matter. The third part explores to which extent EUTM functionality prohibitions may attenuate the negative effects resulting from trade mark overlaps and overprotection.
