ABSTRACT
This chapter deals with signs consisting exclusively of shapes or other characteristics of goods necessary to obtain a technical result. It starts by exploring the meaning of a ‘technical result’/‘technical function’, in light of European patent law, US trade dress functionality doctrine, and EUTM practice. Part 6.2. focuses on the concept of ‘necessity’, that is, the relationship between features and function. It discusses the meaning of technical/utilitarian features and their technical contribution. Part 6.2.3. deals with manufacturing functionality. An important part addresses the category of ‘non-functional’ features and their contribution against functional ones. Evaluating the impact of non-functional features means evaluating the similarity between various technical results incorporated by various combinations of features – this means product equivalence. The last part, 6.4., ties the category of equivalent / alternative products into the competition law perspective of product substitutability, with a focus on how the US uses product definition to determine the range of alternative products. The chapter advances a market-oriented algorithm under the EUTM, hypothetically using AI (Artificial Intelligence) tools, focused on the level of effective competition by substitution, which allows situations of overlapped IPRs generated by hybrid combinations of functional/non-functional features to be dealt with.
