The continuing relevance of the ‘aura’ as a function of a trade mark

The father of the concept of dilution Frank Schechter, explained: “the more distinctive or unique the mark, the deeper is its impress upon the public’s consciousness, and the greater its need for protection against vitiation or disassociation from the particular product in connection with which it has been used.” This comment was made in 1927 and its importance is very much alive today, and it may continue for future year to come.

The Court in Copad SA v. Christian Dior [2009] Case C -59/08 held that the function of a mark that indicates quality includes, though is not limited to, the surrounding aura of the mark. The court explained damage to the: “aura of luxury is likely to affect the actual quality of those goods.” Therefore, this “aura” of a trade mark should be protected.

The dispute was in relation to the fact that Societe industrielle lingerie (SIL) who made lingerie for Dior were selling the underwear to Copad who ran various discounted shops. The court decided that Dior could prevent this selling as this damaged the aura of luxury.

The relevance from a practitioners point of view is that this is another case which indicates the continuing expansion of the function of a trade mark in relation to well known marks. And from a theoretical point of view confirms the importance of the words expounded in 1927 by Frank Schechter.

The question is, should the law continue this expansion?

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