The function of a shape as an absolute ground for refusal

Abstract

The focus of this work will be an analysis of the European conception of the functionality doctrine, which was originally invented and developed by United States' courts. The central debate revolves around the differing approaches taken by the European Court of Justice and Advocate General Mengozzi in the ECJ's recent Lego decision, concerning the classification of so-called hybrid shapes and the relevance of alternative shapes. In order to reconcile these differences with a coherent dogmatic understanding, these questions will be supplemented with the findings of US courts, specifically the ruling in the Traffix decision. The underlying idea of this comparative method is to find appropriate solutions to the questions that still appear to be unresolved at this stage in European trademark practice. © 2013 Max Planck Institute for Intellectual Property and Competition Law, Munich.