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The functionality doctrine in the EU has been extended to traditional trademarks, such as patterns and packaging, as well as non-traditional signs, such as colour and sound marks, just as in the US, as Kate O’Rourke of ITMA reports.
The doctrine of functionality in trademark law originated in Europe, but its application was restricted to shape marks. However, on March 26, 2016, Regulation (EU) 2015/2424 (the trademark regulation) came into force and amended article 3(1)(e) and article 7(1)(e) of Directive 2008/95/EC and Council Regulation (EC) No. 40/94 respectively.
The trademark regulation provides absolute prohibitions to registration, not only for shape marks, but also signs which consist exclusively of:
(i) The shape or another characteristic which results from the nature of the goods themselves;
Kate O’Rourke, ITMA, EU, trademark, Lantham Act, US Court of Appeals for the Second Circuit, Christian Louboutin,