ABSTRACT
This chapter addresses the functionality of signs determined by the nature of goods. It discusses the initial EUIPO/GC restrictive practice confined to natural shapes in parallel with the development of German, Benelux, and UK case-law which focused on features generic for a certain type of product. The main part touches upon CJEU’s Hauck judgment which broadened the legal interpretation as to rely on consumer preferences for generic features for a given type of product. The functionality of signs resulting from the nature of goods overlaps with the absolute refusal grounds concerning (absence of) distinctive character, descriptiveness, or genericness. Critical remarks concern the definition of a functional product archetype and strategic classification of goods. The final part looks into some aspects of US genericness practice in order to map the transposition of US criteria on EUTM ground. The examination of generic functionality should be more flexible and adapted to the evolution of market competition.
