Private Law Theory

ABSTRACT
This chapter proposes that a research agenda for the coming years is more productively framed in terms of the future of trade mark functions. Rather than attempting to exhaustively define existing functions or predict others that may (never) come into existence, recent developments steer the debate in another direction. In particular, recent CJEU judgments situate the functions doctrine within a movement of lateral expansion subsuming market practices such as debranding and spare vehicle parts – practices that do not involve the actual use of a mark and were generally thought to fall outside the realm of European trade mark law. This move should reorient the discussion towards developing trade mark functions as an overarching, externally coherent doctrine capable of (de)limiting the scope of protection.

The future of trade mark functions is entwined with the quintessential question of reconciling trade mark law with normative concerns and other societal interests affected by exclusionary rights granted through registration. Part of the answer – or at least a promising starting point – may reside in a more meaningful and clear engagement with the notion of actionable harm.

Porangaba, Luis H, Future (of) Trade Mark Functions (June 24, 2025). Forthcoming in I Fhima and A Moerland (eds), Research Agendas in Trade Mark Law (Edward Elgar 2026).