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From brand performance to consumer performativity: assessing European trade mark law after the rise of anthropological marketing

McDonagh, Luke (2015) From brand performance to consumer performativity: assessing European trade mark law after the rise of anthropological marketing. Journal of Law and Society, 42 (4). pp. 611-636. ISSN 0263-323X

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Identification Number: 10.1111/j.1467-6478.2015.00727.x

Abstract

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.

Item Type: Article
Official URL: https://onlinelibrary.wiley.com/journal/14676478
Additional Information: © 2015 The Author(s)
Divisions: Law
Subjects: K Law
Date Deposited: 29 Jun 2020 16:06
Last Modified: 01 Jul 2020 09:36
URI: http://eprints.lse.ac.uk/id/eprint/105241

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