The Court of Justice's Protection of the Advertising Function of Trade Marks : An (Almost) Sceptical Analysis

In a number of high-profile cases, the Court of Justice has focused its attention on the advertising function of a trade mark. Some have seen this as giving overly-wide protection to trade mark owners at the expense of their competitors and free speech. An analysis of the Court of Justice’s trade mark jurisprudence on topical issues including parallel importation, dilution and advertising keywords reveals that the Court has been willing to recognise that trade marks have an advertising function as a matter of principle. However, in practice, it has been reluctant to actually recognise that that advertising function has been harmed. Concentrating on harm to the advertising function is most likely a false target. Instead, attention should be focussed on unfair advantage which is likely to lead to wider, and potentially unbalanced, trade mark protection