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A Comparative Study of the Determination of the Functionality of Trade Dress: Based on the Legislation and Legal Practice in the EU, the US and China
Uppsala University, Disciplinary Domain of Humanities and Social Sciences, Faculty of Law, Department of Law.
2019 (English)Independent thesis Advanced level (degree of Master (One Year)), 20 credits / 30 HE creditsStudent thesis
Abstract [en]

The functional doctrine originates from the US and has been well accepted by the EU and China. However, different legal systems has implemented the doctrine through their respective approaches. This thesis makes a comparison among the way that EU, the US, and China approach the functional doctrine based on legislation and legal practices.

 

This thesis starts with the analysis of legislation and legal practice in the EU. An enumerated list about functional doctrine is set down in EUTMR, which mainly focus on the determination of technical results and substantial value. The reason why functional doctrine should be adopted was well explained in settled cases and had guided the followed legal practice. Based on the settled cases, the thesis concluded how CJEU approaches the functional doctrine and presented comments over it.

 

The US part is structured to two major parts, the utilitarian functionality and the aesthetic functionality respectively. The competitive necessity standard has played an important role in the implementation of functional doctrine and well accepted by most of the courts in the US. However, there is no consensus over the determination of aesthetic functionality and some courts even oppose that concept.

 

Compared with the EU and the US, the functional doctrine has not raised a lot of concern in China. Most of the trade dresses are precluded from registration on account of lacking distinctiveness. However, as trade dress has been repetitively presented in front of the competent authority, the functional doctrine would attract more attention and thus learning experience from former walkers is imperative.

Place, publisher, year, edition, pages
2019. , p. 50
Keywords [en]
Trade dress, Functional Doctrine, Three-dimensional mark, Utilitarian Functionality
National Category
Law
Identifiers
URN: urn:nbn:se:uu:diva-385694OAI: oai:DiVA.org:uu-385694DiVA, id: diva2:1325388
Educational program
Master Programme in Intellectual Property Law
Supervisors
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Available from: 2019-07-01 Created: 2019-06-15 Last updated: 2019-07-01Bibliographically approved

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Citation style
  • apa
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More styles
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  • de-DE
  • en-GB
  • en-US
  • fi-FI
  • nn-NO
  • nn-NB
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  • Other locale
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Output format
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  • text
  • asciidoc
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