Premium
From Brand Performance to Consumer Performativity: Assessing European Trade Mark Law after the Rise of Anthropological Marketing
Author(s) -
McDonagh Luke
Publication year - 2015
Publication title -
journal of law and society
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.263
H-Index - 48
eISSN - 1467-6478
pISSN - 0263-323X
DOI - 10.1111/j.1467-6478.2015.00727.x
Subject(s) - performativity , context (archaeology) , agency (philosophy) , harm , brand management , perspective (graphical) , sociology , marketing , business , advertising , law , political science , history , social science , gender studies , archaeology , artificial intelligence , computer science
Since the 2009 CJEU decision in L'Oréal v. Bellure , the idea that a brand's image is the property of the trade mark owner has become increasingly entrenched within European trade mark law. Brand image is now protected even where there is no harm to the underlying mark. However, the courts have largely failed to acknowledge the radical ways in which the marketplace for goods bearing trade marks has changed in the past three decades. One key shift is that businesses and marketers no longer view the brand creation process from a top‐down ‘brand performance’ perspective, but, rather, through the prisms of ‘anthropological marketing’ and ‘consumer performativity'. Through an interdisciplinary approach, this article dissects the process of brand creation in the context of European trade mark law, and argues that the law must take account of consumer agency when the question of who should own brand image arises.