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Legal protection of brands in EU Law

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z_amir / Fotolia

‘Brand’ is not a legal term. It refers to the set of functions and symbols associated with a specific mark, including its cultural, legal, political and social aspects, which contribute to its market value. From a legal point of view, a brand is an exclusive channel of communication connected with the brand exploitation rights, an intangible (investment) asset, as well as a source of sustained competitive advantage. The legal protection of brands is traditionally based on the so-called ‘broadcast model’ of brand creation. It is characterised by the assumption that the trademark owner is the sole creator of the brand. Some scholars criticise this model for neglecting the social dimension of brands and propose the so-called ‘dialogic model’ of brand authorship. In contrast to the ‘broadcast model’, it stresses that a brand image is co-created by the company which legally owns the brand, as well as by its consumers.

The terms “trademark” and “brand” are often used synonymously, but scholars argue that this is a misunderstanding. They point out that brands have an additional emotional and symbolic component which is not relevant in trademark law. According to this view , the increasing socio-economic role of brands has not been sufficiently accounted for in the legal field.

This keysource presents a selection of information sources useful for the current discussions about the legitimacy of the current and forthcoming situation in legal protection of brands in EU law, including not only an insight by legal scholars, but also sociologists, cultural theorists, anthropologists and philosophers.

Overviews

Brands, Competition, and the Law / Deven R. Desai and Spencer Waller. In: Brigham Youth University Law Review, 2010, vol. 2010, is. 5, pp. 1425-1500.
In their article, Desai and Waller analyse brands as a central feature of the modern economy because many consumers are no longer buying a product but buying brand experience. The authors broaden the legal understanding of brands by explaining their functions in business competition.

From Trademarks to Brands / Devin R. Resai. In: Florida Law Review, 2012, vol. 64, is. 4, pp. 981-1044.
In response to the current understanding of trademarks functions, the author provides a new theory of trademarks. The brand theory forms a new normative approach to trademarks which offers the opportunity to bring trademark law into the information age.

Trademark law in the European Union: Current legal framework and proposals for reform / Rafał Mańko. European Parliament Library Briefing, July 2013.
This briefing discusses inter alia the issue of brands in the context of changing socio-economic functions of trademarks and the way in which those changes have been addressed in the case-law of the CJEU.

Confusion isn’t everything / William McGeveran and Mark P. McKenna. In: Notre Dame Law Review, 2013, vol. 89, pp. 253-318.
In this paper, the authors criticise a usual justification of trademark law which focuses on preventing consumer confusion. They argue that such an understanding of the purposes of trademark law causes conflicts with the freedom of economic activity and the freedom of expression.

Property in Brands: The Commodification of Conversation / Dev Saif Gangjee. LSE Legal Studies Working Paper no. 8/2013, 36 p.
The author reviews the current understanding of legal protection of brands and explains how contemporary EU trade mark law protects the more expansive brand dimension. He reveals consequences of marginalisation of consumers’ role in brands’ creation and concludes that the formalism of the legal approach to brand creation contrasts with the paradigm shift within the market.

Trademark law

An Information Approach to Trademarks / Devin R. Desai. In: Georgetown Law Journal, 2012, vol. 100, pp. 2119-2131.
The author explains how information transmission is underdeveloped in the current trademark law doctrine. He argues that the information approach could clean up trademark law’s understanding of information. Desai states that this approach could be helpful in adapting current trademark protection to the present societal situation.

Magical Thinking in Trademark Law / Katya Assaf. In: Law & Social Inquiry, 2012, vol. 37, is. 3, pp. 595-626.
The aim of this article is to highlight the symbolic level of trademark law. The author claims that modern advertising creates a system of beliefs resembling a totemic religion in which brands perform the role of sacred objects.

Slow Logo: Brand Citizenship in Global Value Networks / Margaret Chon. In: University of California Davis Law Review, 2013, vol. 47, pp. 935-968.
This contribution offers a socio-legal approach to trademark law. It explains our system as information capitalism. As consequence, she describes current governance as new governance based on the concept of brand citizenship.

Cultural aspects of brands

Cultural Meanings of Brands and Consumption: A Window into the Cultural Psychology of Globalization / Carlos Torelli and Shirley Cheng. In: Social and Personality Psychology Compass, 2011, vol. 5, is. 5, pp. 251-262.
Through studying consumer reactions to brands, the authors point out how brands as cultural symbols are loaded with cultural meanings. They conclude that studying of brands can contribute to the understanding of a cultural psychology of globalization.

Social Media Amplify Consumer Investment in Trademarks / Deborah R. Gerhardt. In: North Carolina Law Review, 2011-2012, vol. 90, pp. 1491-1530.
Gerhardt shows how the social media have changed the role of consumers in the market and explores the consequences of this change for trademark law. She concludes that (despite of the traditional trademark doctrine) every brand is built by a community so social media are altering traditional conceptions of trademark law.

Brands and their surfeits / Constantine V. Nakassis. In: Cultural Anthropology, 2013, vol. 28, is. 1, pp. 111-126.
This article approaches the brand from the perspective of its surfeits (which refers to thee material forms and immaterial social meanings exceeding brands’ original authority) and the author argues that the capacity of the brand to function as a financial instrument of global capital has turned on its ability to both produce and police those surfeits.

Brand New World: Distinguishing Oneself in the Global Flow / Mario Biagioli, Anupam Chander, and Madhavi Sunder. In: University of California Davis Law Review, 2013, vol. 47, is. 2, pp. 455-472.
The authors show how law is more concerned with what trademarks should mean (according to trademark owners) than what it actually means. The authors argue that the trademark law’s simplified conceptualisation is problematic because of its ignorance of different functions of brands in different contexts and cultures.

The magic of ethical brands: Interpassivity anthe thievish joy of delegated consumption / Markus Walz, Sean Hingston, and Mikael Andéhn. In: Ephemera: Theory and Politics in Organization, 2014, vol. 14, is. 1, pp. 57-80.
The authors introduce the concept of ethical brands and analyse the reasons of their growing importance in consumption. They explain that Pfaller’s interpassivity (based on the work of Jacques Lacan and Slavoj Žižek) refers to a system of saving through delegation of passivity (i.e. consumption) onto others. It means that such consumer’s behaviour gives him an opportunity to escape the pressures of being a responsible consuming subject. The authors argue that it can bring him the thievish joy which can be defined as perverse delight (similar to the fetish in Freudian psychoanalysis). In conclusion, they provide an insight to consumer ideologies as an important part of the political dimension of brands.

Consumers’ view

Is Marketing Ready for the Stakeholder-Focus Brand Era? / Rawn Shah, Forbes, December 2012.
In this interview, Rawn Shah and Mark Tamis discuss the fact that customers are taking charge of brands nowadays so we are living in the stakeholder-focus brand era. Furthermore, they introduce history of brand evolution and also analyse the whole concept of brands in the current society.

Consumers believe brands can have positive impact but are failing to do so / Jo Confino, The Guardian, 4 June 2013.
The author introduces a research by Havas Media Group. It shows that consumers believe that 25% of brands notably improve their quality of life and explains the reasons and consequences of this belief.

The Future Of Branding Is Creating Real Connections Between Consumers and Products / Rita J. King, Futurism forum, November 2013.
The subtitle of this article is: ‘It’s not about selling, it’s about giving control to the people.’ The author argues that the future of branding belongs to storytellers because the most important thing in branding now is an active role of consumers.

What consumers want from brands in 2014 / Tom De Ruyck. In: InSites Consulting, February 3, 2014.
In this article the author presents consumers’ priorities for brands in 2014. The result is that consumers want to buy the best possible product/service (35%), to experience a great customer service (20%) above everything else. At the same moment, the brand owners must actively listen to customers’ needs and wishes (16%), be innovative (15%), eco-friendly (15%) and honest (14%). As for their motivation, it is evident that consumers expect brands to improve their lives.

Heritage heresy / trendwatching.com, March 2014.
This presentation explains ‘why 2014’s heretical consumers view nothing as sacred’. Current development in relationship between trademarks and consumers is briefly but clearly reviewed and explained in this article and also the impact of social networks on trademarks is stressed here.

EU programmes and projects

Convergence Programme: Programme Brief / European Trade Mark and Design Network, June 2011.
In this document OHIM introduces the OHIM Convergence Programme intended to modernise the system of EU IP law administration.

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