|A UK Mark but what is its FUNCTION|
This time Sally Cooper has been getting into sport and wondering if some signs (if signs they be) have function as trademarks:
Listening to radio commentary on the Chelsea v Manchester City match yesterday (which Chelsea won 2-1) a commentator made passing comment to something about a player : "it could become his trademark".
I thought immediately of Andre Agassi. Why ? Because it’s some twenty years since I first heard a lecturer pose the question “ what does the general public think of as a trademark ? “ and answering that question with “ Andre Agassi’s trademark cycling shorts “. Checking back this morning, the BBC reports “ In 1991 …… Agassi dazzled an expectant crowd by striding onto Centre Court dressed in pristine white from head to toe, including trademark cycling shorts “.
Checking further this morning (and avoiding articles written by lawyers) other "clothing as trademark" examples include :
- Michael Jackson wearing One White Glove – goes back to Jackson as a 1980s pop icon wearing a red jacket and a single white glove
- Madonna and her Pointy Bra - designed by Jean Paul Gaultier for her Blond Ambition tour (and sold at auction for £14,100)
- Bjork's Swan Dress - worn at the 2001 Academy Awards.
There is now much learning about "the functions of the trade mark" whether the essential function (indicating the origin of the product or service) or one of the other functions (guaranteeing the quality of that product or service or of communication, investment or advertising). See for example Paragraph 39 in Interflora C-323/09 I’ve yet to come across a "fashion function".
Call me a dinosaur, but "trade"for me has connotations of things-being-bought-and-sold and I’ve never been comfortable with "trademark" being used for (unrewarded) displays of dress of this type. Is it too late to wrench the word “trademark" back from the brink and suggest to football commentators et al that they might want to use another term – like Cel-Mark (being, of course, shorthand for “ Celebrity Mark “) ? Answers in the Comment box, please !