Protecting Trade Marks: An Assessment of the Functional Exclusion Doctrine in Relation to the Registration of Trade Marks in UK and EU Law

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This dissertation considers the protection of traditional and non-traditional trade marks in the UK and EU. In particular, it looks at the functional exclusion of trade marks from being legally registered and then enforced against other parties. With this in mind, it is hypothesised that whilst the recognition of the doctrine of the functional exclusion of trade marks has served a significant purpose in the registration of trade marks, there is still scope for improvement to the doctrine’s current application. Consequently, this study begins by establishing what is meant by a trade mark, and then distinguishes between traditional and non-traditional marks. It also clarifies the doctrine pertaining to the functional exclusion of trade marks. The adopted research methodology of doctrinal exposition and analysis is then explained. On this basis, the dissertation comprises a review of the primary and secondary sources, establishing what constitute traditional and non-traditional trade marks, and the extent to which they are legally protected. More specifically, the rationale behind the functional exclusion doctrine is presented, along with the ways in which this impacts on traditional and non-traditional trade marks. The possible need for reform is finally considered, in the form of a new rule that could be applied in the EU and the UK to prevent certain significant trade marks from being excluded from formal protection as trade marks based on their aesthetic functionality. Finally, this dissertation provides a summary of the key points derived from the analysis and draws a conclusion.