ABSTRACT
This chapter deals with the prohibition of signs that give substantial value to goods (see US ‘aesthetic functionality’). The introductory part retraces EUTM jurisprudence (Benelux approach, Bang&Olufsen and Hauck judgments), as compared to US aesthetic functionality tests, focused on commercial appeal, important ingredient factor or forclosure of competition. Part 8.2. analyses the concept of ‘giving substantial value’ to goods. Interdisciplinary remarks from the field of modern aesthetics (philosophy, psychology, neuroscience, design engineering, branding, marketing) shed light on the meaning of product value and consumer motivation to purchase a given product. Aesthetics represents the study of sensory valuation of human perception, emotional process, experience of pleasure and displeasure (hedonics), valuation of such states, and integration of hedonics in decision-making and behavioural control. Another part examines Hauck criteria and the conditions under which source-identification and reputation-related value should not contribute to aesthetic functionality. Alternative methods of assessment advanced by US scholars that relate to socio-cultural or psychologically pre-determined consumer preferences or empirical surveys are also discussed. The final part advances a multi-factor test, using market definition, which incorporates Hauck criteria such as to capture consumer preferences, with a conclusive focus on competitive need, as measured by the extent of product substitution.
