'Trade mark law and brand values (or Arsenal v Reed Ten Years On)' - Jennifer Davis: CIPIL Seminar

Jennifer Davis, University of Cambridge, gave an seminar entitled "Trade mark law and brand values (or Arsenal v Reed Ten Years On)" on Tuesday 7th February 2012 at the Faculty of Law as a guest of CIPIL (the Centre for Intellectual Property and Information Law). Over the past couple of decades the language of brands has become inextricably linked with the language of commerce. This lecture begins from the assumption that trade marks are not the same as brands, but that trade mark protection might extend to cover what are often termed ‘brand values’. The decision of the Court of Justice in Arsenal v Reed (2002) recognized that a trade mark might have multiple functions apart from acting as a badge of origin. The decision is often seen as introducing the possibility that the protection afforded to a registered trade mark will also extend to its role as a brand. This lecture is by way of a progress report ten years on from Arsenal v Reed. It will consider how and to what extent the Trade Mark Directive has been interpreted by the Court of Justice to offer increasing protection to brand values. It will suggest that, in light of a run of recent cases including L’Oreal v Bellure (2009), Google v Louis Vuitton (2010) and, in particular, Interflora v Marks & Spencer (2012), the protection which trade mark registration will offer to brand values has massively increased. The lecture will conclude that the direction that the Court of Justice has taken since Arsenal v Reed in relation to the protection of brand values is difficult to justify either in principle or practice. Jennifer Davis is the author of Intellectual Property Law, 3rd edition (Oxford: OUP, 2008) and with Tanya Aplin, Intellectual Property: Text, Cases and Materials (Oxford: OUP, 2009). Together with Lionel Bently and Jane Ginsburg, she edited Trade Marks and Brands: An Interdisciplinary Critique (Cambridge: CUP, 2008). She has a particular interest in trade mark law, brands and unfair competition and has published extensively on these topics. Before joining the Faculty of Law, Dr Davis practised as a lawyer in the area of intellectual property litigation. For more information see the CIPIL website at http://www.cipil.law.cam.ac.uk