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An Autonomous EU Functionality Doctrine for Shape Exclusions

Suthersanen, U. & Mimler, M. ORCID: 0000-0002-9457-2506 (2020). An Autonomous EU Functionality Doctrine for Shape Exclusions. GRUR International, 69(6), pp. 567-577. doi: 10.1093/grurint/ikaa072


Exclusionary subject matter are often underpinned by public interest considerations. In the case of shapes of products, the Court of Justice of the European Union has aligned the interpretation of the relevant exclusionary provisions within design and trade mark laws. More recently, European jurisprudence within copyright law in relation to conditions of protection has imported the same considerations so as to regulate the protection of shapes of products. This article explores the multitude of doctrinal and policy reasons underpinning shape exclusions and argues that the Court is consciously creating an EU autonomous functionality doctrine within intellectual property law. We also argue that the Court is building a European macro-rationale within these laws namely to ensure that protection does not unduly restrict market freedom and competition.

Publication Type: Article
Additional Information: This is a pre-copyedited, author-produced version of an article accepted for publication in GRUR International following peer review. The version of record Uma Suthersanen, Marc D Mimler, An Autonomous EU Functionality Doctrine for Shape Exclusions, GRUR International, Volume 69, Issue 6, June 2020, Pages 567–577, is available online at:
Subjects: J Political Science > JN Political institutions (Europe)
J Political Science > JN Political institutions (Europe) > JN101 Great Britain
Departments: The City Law School > Academic Programmes
Text - Accepted Version
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