From Brand Performance to Consumer Performativity: Assessing European Trade Mark Law after the Rise of Anthropological Marketing

McDonagh, L. (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. doi: 10.1111/j.1467-6478.2015.00727.x

This is the latest version of this item.

[img]
Preview
Text - Accepted Version
Download (457kB) | Preview

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 during 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 via the prisms of 'anthropological marketing' and 'consumer performativity'. By taking an interdisciplinary approach this article dissects this 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
Additional Information: This is the peer reviewed version of the following article: McDonagh, L. (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), which is published in final form at http://onlinelibrary.wiley.com/journal/10.1111/%28ISSN%291467-6478. This article may be used for non-commercial purposes in accordance with Wiley Terms and Conditions for Self-Archiving.
Subjects: K Law > K Law (General)
Divisions: The City Law School
URI: http://openaccess.city.ac.uk/id/eprint/13847

Available Versions of this Item

Actions (login required)

View Item View Item

Downloads

Downloads per month over past year

View more statistics