Trade marks are amongst the most ubiquitous and powerful symbols seen in the world today. Whether they symbolize a clothing company, a chain of restaurants or a beverage manufacturer, trade marks have the ability to inform the consumer as to what they are buying and who is responsible for marketing what they are purchasing. Questions, however, do arise as to the proper scope of their protection and whether legal protection should be afforded to their ability to deliver intangible benefits through their “modern” functions which is above and beyond their “essential” function.
This article seeks to address the evident gaps in the existing literature. Of particular note is the lack of a formal definition of trade mark functions. Consequently, a new classification for trade mark functions as indicators, incentives and stimulators is proposed. These three “umbrella functions” could each contain a number of other functions; in particular the stimulators function which could encompass all the “modern” function of a trade mark.