The Elusive Distinctivenes of Trade Dress in EU Trademark Law

This Article provides a systematic analysis of the case law in which the CJEU has created specific rules for assuming product trade dress as distinctive without market use and thus eligible for registration as EU trademark. Under the CJEU’s modified distinctiveness standard, EU average consumers are ordinarily assumed not to have predisposition to trade dress as source-indentifier in the absence of more conventional marks such as words or labels. For a large number of EU applicants, this “departs significantly” criterion represents a significant barrier for registration even though the proposed trade dress may arguably be free of a non-functionality objection. This Article unpacks the policies underpinning the “departs significantly” criterion and challenges deep-seated misconceptions about its meaning and purpose.