The aforementioned glimpse of the Benelux practice draws attention to the two interrelated difficulties which challenge any analysis of aesthetic functionality: the problem of defining the (commercial) value of a product as derived autonomously and exclusively from its appearance (shape and/or other characteristics), and the difficulty of comparing this to the other values embedded by the product. The Benelux courts relied on such quantifiers as 'strongly' and 'largely', while the EUTM legislator opted for the term of 'substantial' value to goods. The key issue is how factors with a possible influence on the value of goods are linked to the product features at issue. Because appearance matters to any product, as taught by the famous marketing slogan 'ugliness doesn't sell',1116 the functionality prohibition becomes relevant when the value of appearance reaches the level of being 'substantial'. This means that a rigid all-or-nothing scenario does not work, and aesthetic functionality requires a flexible approach. The legal doctrine has increasingly noted that product design constitutes a complex signal to induce consumer purchases, not only because of attributes of the appearance, but through a bundle of communicative messages which express lifestyle, social position, and socio-cultural allegiance (e.g. eco-design).1117 The consumer, no matter how specialised and/or narrow the market is, pays attention to the appearance of a product, even if only for reasons of telling it apart from other products. Designers base their work on the psychological principle that perception intertwined with the product's appearance governs the recognition of any product: 'all the design rules are based on human psychology: how people perceive, learn, reason, remember, and convert intentions into action'.1118 Modern design expands the means of interacting with a product to all sensory experiences. If a design is truly a marketing tool, then the goal of this tool is for consumers to purchase a given product. Which factors contribute to this? The aim of this chapter is to search for viable answers.

#### *8.1.2. The winding road to aesthetic functionality: from acceptable decoration, via iconic shapes, towards multifunctional designs*

The following part retraces the scope of the EUTM aesthetic functionality, as settled by the EUIPO/GC/CJEU jurisprudence. There is a noticeable evolution from the initial lenient approach – which accepted that source identification may be co-related with ornamental capabilities – to an over-inclusive

1116 Jean Baudrillard, *The Consumer Society: Myths & Structures* (Sage 1998 reprint) 29.

1117 Ansgar Ohly , '"Buy Me Because I'm Cool": the "Marketing Approach" and the Overlap Between Design, Trade Mark and Unfair Competition Law' in Kur, Levin, Schovsbo (n 130) 109, 117 (citation); Fhima, 'Consumer Value …' (n 34) 661.

1118 Jeff Johnson, *Designing with the Mind in Mind: Simple Guide to Understanding User Interface Design Guidelines* (3rd ed. Morgan Kaufmann Elsevier 2021) xiv.

scenario, based on the criterion of consumer appeal, which may result from aesthetic/non-aesthetic characteristics of a product. Certain flaws in the latter approach mean that it has been used with hesitance in the recent practice.

#### *<IP_ADDRESS>. Early years of jurisprudence*

The early versions of the EUIPO Guidelines restricted the refusal ground to cases in which a shape 'exclusively' achieved an aesthetic function (such as an object of art) and 'ha[d] nothing to do with the commercial value of goods'.1119 A shape being merely pleasing/attractive or contributing to the ornamentation of goods (e.g. Ferragamo's single square-shaped buckle1120) did not fulfil the requirement of giving exclusive value to goods. Nor did a fancy jar of Nestle coffee with faceting reminiscent of a precious stone, differentiating it from the packaging traditionally used.1121 Similarly, a crispy snack with a non-uniform flower-like shape did not fall within the ambit of aesthetic functionality.1122 This line of cases accepted the situation in which a sign simultaneously fulfilled several purposes, that is, achieving aesthetic effects (via decoration) whist indicating the commercial origin of goods/services, which jointly dismissed the functionality bar. Certainly, the more interestingly shaped a product's appearance, the easier was the possibility of meeting the distinctiveness standard, as jurisprudence required that shapes 'significantly' departed from those customarily used on the market (<IP_ADDRESS>.). The refusal ground of aesthetic functionality rarely occurred. EUIPO's lenient approach changed with the case of *Bang&Olufsen*'s loud-speaker.

#### *<IP_ADDRESS>. Focusing on 'iconic' design, yet inconsistently*

On 17 September 2003, *Bang&Olufsen* filed for EUTM registration of a three-dimensional sign showing a pencil-shaped loud-speaker: the BeoLab model. The EUIPO initially refused registration for reasons of lack of distinctiveness, both inherent or acquired.1123 In the appeal, the GC found the shape to be inherently distinctive due to its 'truly specific' shape, where 'the whole create[d] a striking design' to be 'remembered easily' by a restricted public with a higher level of attention to goods, belonging to the top-of-the-range

1123 BoA's decisions in R-497/2005-1 of 22/09/2005 and of 24/02/2006 (corrigendum).

electronics market.1124 Subsequently, the EUIPO annulled its first decision regarding distinctiveness, yet again ruled on the merits and refused registration upon the functionality ground of a shape giving substantial value to goods.1125 Another appeal heard by the GC resulted in the judgment of 6 October 20111126. The Court upheld the EUIPO's refusal by referring to the manner of how the shape was advertised, sold, and publicly perceived as a 'kind of pure, slender, timeless sculpture for music reproduction', while the applicant emphasized that the design played an essential role in branding and increased the appeal, ergo the value of the product.1127 The GC agreed that other characteristics of that product (functional parameters, quality of materials) could also have given 'considerable' value to the goods, however, the design carried the leading role in consumer's choice.1128

The judgment revealed some contradictions that have plagued EUTM case-law ever since. First, the need to define the rationale of aesthetic functionality at the crossroads between avoiding the sequential cumulation of rights with regards to designs, copyright, and trade marks in light of *Philips* and *Lego* guidance,1129 and acknowledge the possibility of overlap between the subjectmatter of designs/copyright and trade marks.1130 Part 2.2.2. argued that a sensible understanding of the purpose of aesthetic functionality post-*Gömböc*1131 is to renounce formalistic delineation and hierarchy between different IPRs, whilst embracing the need to ensure effective competition on the market. Second, in *Bang&Olufsen* the EUIPO/GC focused on what determined a consumer's choice to purchase the product – that is, was it predominately the shape, or something else? However, no reference was made to market studies or any other evidence showing actual consumer behaviour. Even more, the GC tentatively followed the guidance from *Lego*, which downsized the role of consumer perception in examining functionality, even though *Lego* concerned technical functionality.1132 Instead, the court preferred its own assessment ex cathedra, upon selected proofs interpreted in a way far from clear guidance. For instance, once the Court labelled the loudspeaker 'iconic', it led to the assumption that the design necessarily gave substantially 'more' value than any other parameters, such as technical performance or prestigious brand. Need-

less to say, if a 'remarkable' shape was aesthetically functional, whilst an ordinary one lacked distinctive character, then the kinds of product appearance that could still be trademarked remained 'enigmatic'.1133

In the following years, the EUIPO focused mainly on the value stemming from an extraordinary shape, as opposed to other kinds of values and/or product parameters. A diamond-shaped bottle of vodka, labelled as a 'kind of pure, slender, timeless sculpture', was seen to confer the 'notion of expense and exclusivity' to beverages, also due to the high price and expensive craftmanship – the mix of these luxury attributes rendered the shape unregistrable.1134 By contrast, the registration of the 'AluChair' shape, designed by Charles and 'Ray'(Bernice) Eames, was upheld, because its appeal stemmed from the famous designers, and not from the shape alone, which over time had become banal and represented just one variant of aluminum swivel chairs.1135 Similarly, in the case of the 'Eames Lounge Chair' the cancellation division considered it an 'ordinary piece of lounge furniture', with its economic value resulting from a combination of factors (the designers' fame, history, status as a luxury item for connoisseurs, reputation), and not the shape's attractiveness. Registration was maintained in the first instance, 1136 however four years later an appeal was heard after the *Hauck* judgment (more in <IP_ADDRESS>.). Finally, in the case of the 'Gibson' guitar body, which might also have appealed to customers because of the brand reputation, its value was understood as 'attractiveness' ensured primarily by the shape, insofar as it determined the choice of one guitar over another.1137

#### *<IP_ADDRESS>.* Hauck*, more ambiguity than enlightenment*

As the *TrippTrapp* chair case involved a referral for a preliminary ruling, the CJEU's binding interpretation stated that the prohibition of a sign giving substantial value to goods may apply to a sign consisting of a shape with several characteristics, each of which may give that product substantial value.1138 The aim of this judgment was to encompass products with 'essential functional characteristics', apart from those of artistic/ornamental value.1139 The CJEU referred to the chair's 'other characteristics (safety, comfort and reliability)'

that gave essential functional value.1140 In the author's opinion, these characteristics did not represent objective features/properties of the chair, but only subjective sensations and judgments resulting from using that product. This is the weakest part of the CJEU's ruling, as it blurs the line between the objective characteristics of a product that may perform various purposes (technical/ utilitarian, ornamental/decorative, or simply being an arbitrary detail) and the subjective perception of such characteristics by a user. What should matter here is the specific properties of the product and how they can contribute to conferring 'value' to the product/goods, yet this assessment is also dependent on the definition of 'value' (8.3.1.).

*Hauck* seemingly aimed to make utilitarian functionality a relevant source of value. An obvious difficulty emerges. Insofar as the refusal ground applies to a sign consisting *exclusively* of a shape or another product characteristic giving substantial value to goods, this would indicate that the addition of *extra* features without conferring such value should dismiss the prohibition (LB). This would be the case when adding words or graphics in order to ensure source-identification value, which could minimize the risk of triggering aesthetic functionality (8.3.3.). In the author's opinion, the initial interpretation of this prohibition also implied that features with utilitarian, technical effects, as opposed to aesthetic appeal, could dismiss the prohibition. In the light of *Hauck*, if utilitarian/technical functionality is also responsible for aesthetic functionality, then it is unclear what kind of product features are under consideration, and what kind of purposes such features should perform so as to avoid the application of the refusal ground.

The CJEU reiterated *Lego*'s approach which reduced the role of consumer's perception to the identification of the essential characteristics of a sign (5.3.1.).1141 However, the court followed the AG's suggestions1142 that 'other' criteria of assessment may be considered, such as:1143

The Court concluded that the public's perception may be one of the possible criteria to determine 'whether that ground for refusal is applicable'.1144

```
1140 C-205/13, para 29.
1141 C-205/13, para 34.
1142 Opinion of AG Szpunar to C-205/13, EU:C:2014:322, para 93.
1143 C-205/13, para 35.
1144 C-205/13, para 36.
```
The author reads the latter words, juxtaposed with *Lego* guidance, as meaning that the criterion of public perception may be used twice in the assessment of aesthetic functionality. First, it helps to establish the essential characteristics of the sign. Second, it helps to interpret whether the shape or other product characteristics bring 'substantial value to goods'. The aforementioned criteria are analysed in 8.3.2. below.

#### *<IP_ADDRESS>. Living in a post-*Hauck *environment*

An interesting follow-up concerned the 'Eames Lounge Chair', the value of which, in the eyes of the EUIPO's first instance, resulted from an ergonomic, sophisticated design that 'bec[a]me famous … not primarily because of its aesthetic attractiveness'.1145 However, the BoA re-examined the evidence and changed its view under the *Hauck* guidance, finding that promotional strategies had touted the value of the shape, whilst its craftmanship and art exhibitions demonstrated that it had substantial value at the date of filing for registration.1146 Subsequently, the parties reached an agreement to withdraw the appeal and maintained the registration, 1147 which demonstrates that the financial strength of a company may ultimately decide the fate of functionality objections.

In another case, the EUIPO's Grand Board of Appeal invalidated the registration of *Lindt's* (chocolate) 'Gold Bunny'. The EUIPO relied on evidence concerning the difference in the shape of a traditional Easter bunny as compared to other chocolate products and its higher price.1148 The golden foil wrapping, the red ribbon, and the gold bell of the bunny were also held to be 'typical' elements of Easter decoration. The EUIPO ruled that the shape and overall appearance played the decisive role in consumers' purchase decision1149, although the need to keep Easter symbols free from monopolization was equally emphasized.1150

In other cases the EUIPO adopted a moderated, even restrained approach to aesthetic functionality, somehow still applying the pre-*Hauck* guidance. The value of an ice-cream was seen to mainly derive from its flavour and consistency and not from its shape, especially given that the manufacturer could not command a higher price because of the shape, whilst end consumers solely relied on the source-identification 'value' of the ice-cream at the point of sale.1151

1145 For an analysis of the EUIPO's hesitance towards the Eames designs, see Stefanie Voegl, 'Two Eames Chairs, Two Contrary "Decisions"' (2017) 48(4) IIC 452, 456–458.

1146 R-664–2011–5, 21–42.

1147 T-455/15 *Vitra v. Consorzio*, EU:T:2016:653.

1148 R 2450/2011-G, 35–43.

1149 ' It is highly unlikely that consumers would buy Easter bunnies that do not have traditional features as a present for their children' (ibidem, 38).

1150 Ibidem, 45–46.

1151 R-0590/2015-4, 30–35.

In the case of a sparkling wine bottle with a reflective golden/pink colour and a small letter/logo, the BoA identified the shape and colour as being two essential characteristics, however, neither was 'striking', nor 'easily remembered', and in combination did not confer substantial value to the goods.1152

Two recent decisions have addressed shapes with visible utilitarian/technical input. The first case concerned the attempt to invalidate the *Dualit* toaster under the EUTM, with objections of aesthetic functionality reminiscent of those raised in the UK proceedings.1153 The BoA noted that '[t]he success of the proprietor with the mark and the products it designates is not what is meant in Article 7(1)(e) EUTMR' – the toaster's high value stemmed from branding strategies, high volume sales, and enhanced distinctiveness.1154 The EUIPO held that consumer purchase decisions were influenced by a mix of factors: beauty, durability, practicability, speed, quality, and, apart from shape, none of them was disclosed by the graphic representation.1155 In consequence, the relevant 'value' was the commercial one, 'of the product as marketed today', as compared to similar toasters, without giving weight to the details of the historical development of the design.1156 A similar approach was adopted in the case of the *Vespa* scooter by the EUIPO's Cancellation Division, which dismissed the objection of aesthetic functionality, mainly because of a lack of evidence, but also by admitting that consumers would also consider, apart from aesthetic characteristics of the shape, other types of characteristics, 'such as, for example, reliability and technical performance'.1157

The most recent decisions show how difficult is to adopt a gradual approach to the notion and source of value, especially if there is an interplay of heterogenous factors. The EUIPO's recent assessments have cautiously departed from the *Hauck* guidance, as utility parameters were balanced against the sole (aesthetic) value of appearance, which ultimately led to the dismissal of the prohibition. As *Hauck*'s legacy is not easy to follow, there is a great need to examine the reasons under which a product may appeal to a consumer and determine a purchase decision. This would make it possible to advance working criteria for interpretation which could render the scope of aesthetic functionality more predictable. Before looking into the parameters of substantial value under the

EUTM, the following part offers an insight into the US practice around aesthetic functionality as possible ground for analogical application.

### **8.2. The US approach to aesthetic functionality**

Chapter 3.2. showed that the US functionality doctrine initially addressed product features performing mechanical/utilitarian effects. Aesthetic functionality only exceptionally intervened, and in the context of product features essential to ensure commercial success/appeal.1158 Because early cases concerned protection under competition grounds, attention was focused on the costs which a defendant needed to incur in order to differentiate from the products of the plaintiff (e.g. by choosing another colour scheme) and whether the ability to compete was reduced.1159 The introduction of a definition of aesthetic functionality in the Restatements provided an impetus for developing a jurisprudential line which focused on the risk of foreclosure of competition, set in the context of the availability of substitutes.

#### *8.2.1. From mere commercial appeal to the 'important ingredient' test*

The first definition of aesthetic functionality came with the First Restatement of Torts of 1938 (commentaries to §742) and referred to features contributing to the aesthetic value of goods, which aided the performance of the object for which the goods were intended.1160 It was soon illustrated by a case of a bib-pocket with rounded corners, found functional due to 'commercial appeal'.1161 This ruling prepared the ground for the landmark *Pagliero* judgment concerning floral motifs on hotel china.1162 The court asserted the

principle that functionality meant 'connot[ing] other than a trade-mark purpose' 1163 and found the decoration functional because it was 'an important ingredient in the commercial success of the product', an 'essential selling' feature. A contrario, non-functionality denoted a feature that is 'a mere arbitrary embellishment, a form of dress for the goods primarily adopted for purposes of identification and individuality and, hence, unrelated to basic consumer demands in connection with the product'.1164

*Pagliero*'s 'important ingredient' became an influential standard for testing aesthetic functionality. However, it had certain shortcomings, such as discouraging the creation of attractive designs1165 or discriminating against designs with goodwill.1166 Although the *Pagliero* interpretation ran against the modern capability of symbols to convey multiple meanings and increase product saleability, some courts continued to apply it even as late as the 1990s. In the *Aromatique* case (conc. potpourri packaging, claimed as a combination of features), the pillow-shaped cellophane bag, tied at the top in a flower-shaped gathering of cellophane allowing the fragrance to escape, was found functional for its visual and olfactory appeal, because consumers wanted to see and smell the potpourri before its purchase.1167

Due to *Pagliero*'s obvious deficiencies regarding properly evaluating the commercial value of a product, several other criteria were introduced, and often mingled together for the purpose of defining aesthetic functionality. The 'actual benefit' test examined whether the feature created additional benefits (utilitarian or aesthetic) apart from merely source indicating, such as black colouring increasing the heat dispersion of woodburning stoves.1168 By contrast, the 'consumer motivation' test asked whether the feature affected consumers' behaviour and determined the market demand for the product at issue.

This led to a more restrictive way of applying functionality. A court held the appearance of a carpet sample folder non-functional, because it only helped consumers choosing the product of interest, that is, the carpet.1169 Similarly, the colours of drug capsules sold on prescription were not functional, because the consumer purchase decision was mainly influenced by doctors and pharmacists, and not by the drug's appearance and its possible benefits.1170

#### *8.2.2. A focus on foreclosure of competition and alternative products*

The Restatement (Third) of Unfair Competition involved more developments to aesthetic functionality, as §17 used the general term of functional 'designs' and linked the issue of effective competition to the availability of substitutes.1171 The official commentaries to rule §17 included examples falling within the ambit of aesthetic functionality. For instance, a china pattern – reminding of earlier *Pagliero* – would be non-functional if there were available alternatives, however a heart-shaped candy box would be considered functional for candy packaging, yet allowing possible substitutes for another kind of goods, such as motor oils.1172

A line of jurisprudence emerged to apply the 'need to copy' standard in a market defined by the existence of alternative products. Its most important confirmation was found in the *Qualitex* judgment,1173 which discussed the functionality of a colour standing alone. The Court noted that the functionality doctrine cannot sustain a blanket prohibition against the trade mark eligibility of colours per se,1174 nevertheless it should help to prevent the anticompetitive consequences of trademarking colours.1175 The Court defined functional features according to the *Inwood* terms, yet with a competitive need refinement. The Court explained that '"[i]n general terms, a product feature is functional," and cannot serve as a trademark, "if it is essential to the use or purpose of the article or if it affects the cost or quality of the article," that is, if exclusive use of the feature would put competitors at a significant non- reputation-related

disadvantage. *Inwood Laboratories, Inc., supra*, at 850, n. 10'.1176 The latter words reaffirmed the aim of functionality 'to protect competitors against a disadvantage (unrelated to recognition or reputation) that trademark protection might otherwise impose, namely, their inability reasonably to replicate important non-reputation-related product features'.1177 In *Qualitex* the industry of cleaning devices was not reliant on a limited selection of colours, so there was no competitive need for the green-gold hue at issue.1178

Another notable case is *Wallace v. Godinger*, 1179 which dealt with infringement claims against the appearance of baroque-style silver cutlery. The Court found certain design motifs (scrolls, curls, flowers) similar to 'basic elements of a style that is part of the public domain', and akin to generic names and basic colours; however, functionality was established because trade mark protection of the design would have significantly impaired competition 'by limiting the range of adequate alternative designs'.1180 There were also cases in which courts refused to deny trade dress protection to commercially successful product (features), without examining the possible impairment of competitors.1181 This fact has led certain scholars to suggest a greater focus on defining the relevant market in the light of an antitrust law approach.1182

Recent cases have experienced difficulties in separating the intertwined features of aesthetics and function,1183 and also in distinguishing between source-

identifying value and other co-related values that influence consumer purchase decisions. 1184 These issues are also present in EUTM assessments of aesthetic functionality. The CJEU in *Hauck* advanced various criteria of interpretation, examined in detail in 8.3.2., yet, taken individually, they are not fully operative. Most of them cannot confer a clear and predictable answer to queries around whether the prohibition should apply or be rejected. For these reasons, the author will argue that the best lesson the EUTM can learn from US practice consists of applying the standard of foreclosure of competition measured by the availability of substitutes (8.4.).

#### **8.3. Interpreting the meaning of 'giving substantial value to goods'**

The EUIPO Guidelines instruct that "value" should be interpreted not only in commercial (economic) terms, but also in terms of "attractiveness" that is to say, the likelihood that the goods will be purchased "primarily because of" their particular shape or another particular characteristic'.1185 Although consumer perception of products is downplayed amongst other factors of assessment, it seems clear that aesthetic functionality deals with the alleged motivation of consumers when purchasing the product at hand. Indeed, in the *Gömböc* case the CJEU indicated that the refusal ground applies if it resulted 'from objective and reliable evidence that the consumer's decision to purchase the product … [was] to a large extent determined by that characteristic'.1186 The central query is whether the product's shape or other properties ensure (or largely contribute to) the purchase decision, or whether there are other distinct factors that give value to goods, external to the product.

As the Guidelines speak frequently of 'aesthetic value' and (product) 'attractiveness', an inquiry into why a consumer wants to own a product and to what extent aesthetic pursuits are part of the purchase decision seem legitimate. The complexity of the inquiry, however, necessitates drawing insights from various research areas. The following interdisciplinary remarks are not an attempt to clarify the issues raised therein, but to emphasize the need to take aesthetic functionality out of the legal box. The aim is to show how intricate the picture of consumer appeal of a product is, and how easily a court may reach the wrong answer if ex cathedra assessments take place without the support of interdisciplinary proofs.

#### *8.3.1. The many facets of aesthetics*

Aesthetic processing has an impact on all layers of human cognition, emotion, and motivation, being central to our everyday choices, such as those

1184 *Christian Louboutin v. YSL*, 696 F.3d 206, 211 (2d Cir. 2012).

1185 EUIPO Guidelines (2021) part B sect. 4 ch. 6.4.

1186 C-237/19 *Gömböc*, para 47 and second operative part.

concerning the way of living, dressing, life partner, work and leisure activities. 1187 One such life decision is the desire to own/purchase a preferred object, which is of particular relevance to this book. Aesthetic experience and aesthetic behaviour mean more than experiencing and creating art, although, historically, the concept of aesthetic appreciation emerged in the 18th century based on the superiority of beaux arts versus crafts, under the influence of philosophical theories and socioeconomic models (i.e. the elevation of the bourgeoisie).1188 Modern approach urges to disentangle aesthetics from any art connotations and reframe it as the study of 'sensory valuation' of human perception, emotional process, experience of pleasure and displeasure ('hedonics'), valuation of such states, and integration of hedonic values in decisionmaking and behavioural control.1189 For these reasons, nowadays aesthetics lies at the intersection of numerous disciplines: philosophy, arts/art-related disciplines (e.g. design), anthropology, ethnology, sociology, linguistics, marketing, psychology, and neuroscience.1190 The following parts explore several of these fields in order to understand what 'appeal' and 'value' may mean for a consumer in relation to a product.

#### *<IP_ADDRESS>. Aesthetic experience viewed by philosophy and psychology*

Initially, the field of aesthetics derived from philosophical inquiries. The concept of 'aesthetics' was introduced by the German philosopher Alexander Baumgarten in a section of his *Metaphysica* called *Psychologia empirica*, to describe the science of perception, that is, what soul knows indistinctly (confusedly) under 'sensitive representation', as opposed to how intellect knows things distinctly and conceptually as 'things known'.1191 The definition of aesthetics read as follows: 'the science of sensitively knowing and proposing, the art of thinking beautifully [as opposed to logical thinking, LB], the art of the analogy of reason' – the main aim of aesthetics was dealing with 'the perfection of phenomenon as phenomena' (i.e. the notion of 'beauty'), while 'the joy of the aesthetic experience derived from the perception of perfection'.1192 Aesthetics evolved under the influences of Immanuel Kant and Georg Hegel to embed a component that engaged intellectual knowledge, linking beauty and sublime

1187 Eugen Wassiliwizky, Winfried Menninghaus, 'Why and How Should Cognitive Science Care About Aesthetics?' (2021) 25(6) Trends in Cognitive Sciences 437.

1188 Mar tin Scov, Marcos Nadal, 'A Farwell to Art: Aesthetics as a Topic in Psychology and Neuroscience' (2020) Perspectives on Psychological Sciences 1, 2–4 at: https://doi. org/10.1177/17456916198979

1189 Ibidem, 2, 10.

1190 Wassiliwizky, Menninghaus (n 1187) 445.

1191 Leonard Wessell Jr, 'Alexander Baumgarten's Contribution to the Development of Aesthetics' (1972) 30(3) The Journal of Aesthetics and Art Criticism, 333, 336–337 with an English version of Baumgarten's Latin text of *Metaphysica* (7th ed. Halle 1779, 1st ed. 1739).

1192 W essell (1191) 338, referring to Baumgarten's work *Aesthetica* from the years 1750–1758.

elegance to values transcending experience by the senses.1193 The major input of Kant addressed the concept of 'judgement of taste' ('beauty' v. 'ugliness') defined by the qualifiers of 'subjective universality' (being based on the feeling of pleasure/displeasure) and 'universal validity' (that of being 'interpreted as a normative aspiration'1194). Modern philosophy integrates Kant's perspective in order to ascertain an autonomous status to the aesthetic judgment.1195 A recent study taking a philosophical insight argues that aesthetic values, similar to moral ones, are essential for defining one's self-identity.1196

The fact that aesthetics involves evaluative judgments about the phenomenal appearance of things, upon different qualitative parameters (e.g. 'beauty'), whilst such judgments are inherently affective and contain a hedonic component (pleasure/displeasure) has attracted the interest of the field of psychology.

Psychology defines an aesthetic experience as emotionally and hedonically engaging in 'a conscious experience of an aesthetic quality of a stimulus', which entails awareness of: the stimulus's aesthetic quality; the aesthetic emotion; the hedonic quality of the previous, whereas all together lead to an aesthetic judgment.1197 The general explanation of aesthetic judgment is that it results from the interaction of 'bottom-up stimulus properties and top-down cognitive appraisals', 1198 in a continuous flux. The cognitive sphere comprises mental representations and schemas formed by the mind in the on-going process of experiencing the world and used in casu for an aesthetic experience (e.g. childhood behavioural patterns mark later life experiences).1199 Cognitive psychology emphasizes the attentional character of this activity, determined by the satisfaction/dissatisfaction it produces; however, the hedonic valence results primarily not from the object itself, but from the on-going attention, from the self-reinforcing activity, that is, 'attention calls for further attention in an internal process of continuous feedback', motivated by 'hedonic reinforcement'.1200

An aesthetic judgment may be considered rewarding and as generating an affectively positive experience, even if the perceived object is of poor quality or considered ugly according to common standards. Similarly, aesthetic pleasure is increased by the conceptual and contextual understanding of an object, going beyond its mere appearance. This explains, for instance, how abstract art is also able to generate a strong aesthetic experience.1201

Psychology has primarily associated aesthetics with the emotions of liking, pleasure, and preference. Recent studies argue that a positive aesthetic experience extends beyond 'liking' and the group of pleasure emotions, to encompass 'knowledge emotions' (i.e. interest, awe, beauty, confusion, surprise). Experiments have explored the relationship between certain traits from personality models, that is, 'Openness and Intellect', and the kind and intensity of emotions appraised by aesthetic experience.1202 For instance, both Openness/Intellect are associated with 'reactivity to novelty', which influences the emotion of 'interest'.1203 'Curiosity' is also a trait of Openness/Intellect that has an impact on 'interest', as curious people can better understand new situations and, thus, experience greater 'interest'.1204 It is important to note here that the attribute of novelty and the emotions of 'interest' and 'surprise' are parameters used by design studies to express the creativity, and implicit value of a design (below <IP_ADDRESS>.). Therefore, the value of a design doesn't simply depend on it being liked or preferred when compared to others, but on it triggering the more complex knowledge emotions, which tie into the capacity to convey the layer of symbolic meaning, which is of essential interest for its addressee.

#### *<IP_ADDRESS>. Heading towards empiricism – Neuroscience, neuroaesthetics, neuromarketing*

The need to measure/quantify aesthetic experience led to the foundation of empirical aesthetics in the 19th century by Gustav Theodor Fechner. His experiments involved, amongst other breakthroughs, measuring sensations in relation to physical stimuli, and determining which shapes and dimensions were

concept of 'flow' – [d]uring this state of mind people are intensively immersed in what they are doing, with strong involvement in the process of the activity', see Slobodan Marković, 'Components of Aesthetic Experience: Aesthetic Fascination, Aesthetic Appraisal, and Aesthetic Emotion' (2012) 3 i-Perception volume 1, 2.

1201 Helmut Leder, Benno Belke, Andries Oeberst, Dorothee Augustin, 'A Model of Aesthetic Appreciation and Aesthetic Judgements' (2004) 95 British Journal of Psychology 489, 491 (using modern art to prove 'the importance of top-down influences for aesthetic experiences') at 502.

1202 Kirill Fayn , Carolyn MacCann, Niko Tiliopoulos, Paul Silvia, 'Aesthetic Emotions and Aesthetic People: Openness Predicts Sensitivity to Novelty in Experiences of Interest and Pleasure' (2015) 6 Frontiers in Psychology 1, 2 with references.

1203 Ibidem, 9.

1204 Ibidem, 3.

the most aesthetically pleasing.1205 However, years then passed with no clear progress, until the availability of brain imaging tools in the late 1990s brought about a breakthrough in understanding. 'Neuroaesthetics' emerged as a subfield of neuroscience, examining how the interplay of neural, physiological, and behavioural mechanisms is involved in aesthetic perception.

Neuroaesthetics explains that hedonic value is flexibly processed in the mesocorticolimbic reward circuit, depending on the interplay of several factors. These are: the stimulus properties of the object; the contextual factors under which the stimuli occurs (such as feeding, sex, social interaction, economic transactions, art, environmental location); and ongoing regulatory processes of other parts of the brain.1206 Although most studies have evaluated emotional responses in relation to artwork, one recent view posits that the neurobiological processes of pleasure/displeasure arising from works of art overlap with those resulting from non-art stimuli.1207 Another study which reviewed several neuroscience experiments concerning artwork noted that experiencing art was self-rewarding per se, whatever was the emotional content of the piece (i.e. the pleasure of listening to sad music, with the beauty of it being appreciated and conveying a positive mood).1208 It also concluded that 'art-specific emotions and utilitarian emotions found a common neural substrate in [the] brain network involved in emotion processing and reward'.1209

The latter findings are important for this chapter, as they support the view that consumers may emotionally experience pleasure/reward from being in contact with a product which is not necessarily a 'work of art'. The hedonic experience is a complex phenomenon that combines sensory perception, circumstances in which the stimuli occur, and brain activity, including here the cognitive sphere. All these elements fuse together to generate aesthetic judgments, and lead to decision-making. If this bears significance in the consumer's purchase decision, then this is the point where a new subdiscipline steps in, 'neuromarketing', which explores the influence of neuroscience on the consumer psychology of brands.1210 There are many experimental studies in this field, such as examining the emotions arising from touch, taste, and hearing, so the following recent experiments were chosen to support the discussion concerning the commercial relevance of non-traditional trade marks, used as significant cues in branding strategies.

1210 Plassmann et al. (n 1206) 18, 28.

1205 www.britannica.com/biography/Gustav-Fechner

1206 Scov, Nadal (n 1188) 7–8, with references. For an older paper referring to earlier studies discussing the reward effects based on the activity in the orbitofrontal cortex, Hilke Plassmann, Thomas Ramsøy, Milica Milosavljevic, 'Branding the Brain: A Critical Review and Outlook' (2012) 22 Journal of Consumer Psychology 18, 25–26.

1207 Scov, Nadal (n 1188) 7.

1208 Mastandrea et al. (n 1198) 3–4.

1209 Ibidem, 4.

The role of touch and aesthetic appeal for strengthening/building the emotional connection between customers and goods/services was explored in a series of experiments that provided tangible objects (badges, wristbands, mugs, pens) as advertisements for future services.1211 One case demonstrated that merely touching a sample glass handed to customers prior to the opening of a café increased the psychological appeal of the café's services.1212 Another case involved two kinds of wristband (i.e. made of thinner, uglier plastic, versus nicer, thicker plastic) handed out before the opening of a gym, which proved that more aesthetically appealing objects increased the effect of touch on the psychological connection.1213 These results support the advice that businesses should offer items with high aesthetic appeal.1214

A consumer's affective reaction towards a product increases the 'perceived' quality of the product, which, again, strengthens the purchase decision. One experiment measured the effect of autonomic emotions (i.e. those coming from the autonomic nervous system) upon the electrodermal response of consumers when tasting chocolates from various brands.1215 In blinded settings, the results showed similar emotions were felt towards well-known brands versus private labels, however nonblind settings increased the emotions felt and preference for national brands.1216 The study argued that consumer perception is influenced by autonomic emotions, which may be triggered both by a product's intrinsic attributes (taste, texture, shape) and extrinsic ones (brand components, price, packaging) – here proving the link between unconscious processes and the motivational effects of brands.1217

Another study explored the effects of sonic branding (advertising music) on consumer behaviour in the context of 'the exposure effect' (i.e. the rule that people can develop preferences for things by merely becoming familiar with them).1218 The experiments showed that the choice of a novel brand increased if paired with previously known/learnt music as compared to novel music, whereas an extremely negative perception of the music (dislike) completely suppressed the effect of familiarity.1219 The study argued that the most effective way to use music to influence consumer behaviour was to combine 'all

available music cues (e.g., preferences, familiarity, fit, mood) according to their impact on the target consumers'.1220

#### *<IP_ADDRESS>. At the core – the perspective of designers*

Psychology and neuroscience have shed light on the breadth of aesthetic experience encompassing pleasure and knowledge emotions, on the similar neuronal path hedonics appraises from art and non-art stimuli, and on the occurrence of aesthetic judgment as part of daily life and decision-making.

All these discoveries correspond to the perspective adopted by design studies when exploring consumer experience with products. It is common knowledge that designers are interested in launching successful products that sell. Products that catch customers attention, meet customers' needs. The following remarks refer to several design studies to demonstrate that products which are appealing to consumers integrate sensory-appealing, functional, and symbolic layers whose interplay generates a conglomerated, holistic value. These experimental studies are in line with the arguments recently expressed by professor Ilanah Fhima, encouraging consideration of 'consumer value as a single whole' whilst 'the characteristics of goods which add value form a wide ranging and integrated whole'.1221

Design engineering confers a double meaning to aesthetics: either when referring to a product's appearance, visual and ergonomic appeal, or as referring to the judgments a consumer makes about a product's appearance (i.e. cognitive reactions) – these aspects are often intertwined.1222 Scholarship to date has employed various classifications of consumer responses (with a particular focus on emotions).1223 One study argued that cognitive responses may be divided into three categories:1224

All of these cognitive categories, individually or combined, raise different affective responses, that is, emotions, moods, feelings (e.g. admiration, disappointment, amusement and disgust).1225 Once a product fulfils their practical needs (utility, safety, comfort), consumers seek further emotions and symbolic

1220 Ibidem, 15.

1221 Fhima (n 34) 677–686, at 685 citation.

1222 Ji Han,·Hannah Forbes, Dirk Schaefer, 'An Exploration of How Creativity, Functionality, and Aesthetics Are Related in Design' (2021) 32 Research in Engineering Design 289, 290.

1223 Fhima (n 34) 681–683 referring to works of D. Norman, P. Jordan, P. Desmet.

1224 Nathan Crilly, James Moultrie, P. John Clarkson, 'Seeing Things: Consumer Response to the Visual Domain in Product Design' (2004) Design Studies 25(6) 547, 552 with further references.

1225 Ibidem, 553.

attributes, mainly derived from prior experiences and the socio-cultural context – this means that consumers buy a product's 'value in the form of entertainment, experience and identity'.1226 These arguments draw on Abraham Maslow's 'hierarchy of needs' motivational theory, which sees human behaviour as based on five categories of needs – with physiological ones placed at the base and the most important, sociological ones, at the apex. A product capable of satisfying sociological needs must also fulfil some of the basics.1227 The fact that a product must satisfy aesthetic/decorative, practical, and societal needs means that the 'value' of a product encompasses multiple components. It is not only about visual appearance and objective product properties, but about the product's general ability to satisfy the emotional and socio-cultural needs of a customer, including their unarticulated expectations. For instance, even with highly functional products (e.g. smart technology devices), consumers look for more than just technological capabilities. Consumer preference requires that devices confer social and hedonic value, and that the product behaves intelligently and responds to users' needs almost invisibly.1228

These layers/elements of products, responsible for conveying sensory, functional, and symbolic meaning interact fluently to a varying extent, which designers deliberately exploit. For instance, an experiment showed that by manipulating the aesthetic product features usually associated with hedonics, here the colour, shape, and materials of a can opener, there was a perceived direct effect on its pragmatic attributes (its usability).1229 This confirmed the assumption that the experiment's participants would perceive a product's general appeal and the pleasure of using it through a holistic evaluation of the hedonic and pragmatic attributes, referred to as 'apparent product character'.1230 The study also demonstrated that aesthetic values vary amongst age groups: young people preferred the most expensive and sophisticated models, whilst old people mostly appreciated the cheaper, less sophisticated, but most familiar models.1231

Aesthetic appeal, linked to a product's appearance, and bolstered by emotional attachment, brings added value, especially when the product has to differentiate itself from alternatives of similar functionality.1232 One empirical study testing the perception of vases showed that there was a special relation-

1226 Ibidem, 548.

ship between aesthetic features that raised various perceptions (e.g. beautiful, elegant, exciting, expensive) and the 'desire to own' a product, whilst beauty was experienced as a stable feeling transgressing cultures.1233 This study belongs to the design school of 'Kansei engineering' which focuses on predetermined aesthetic responses based on the relationship between product properties, and the consumer interaction and emotional response – this school aims to create products that intentionally raise certain emotions.1234

Bearing in mind that aesthetics convey social and cultural values, one such intended emotion is 'meaningfulness', that is, 'the ability to relate the product to a story in the consumer's life'.1235 An example of this process is a popular Polish shop called 'Pewex.pl'. The shop sells apparel/accessories ironically reminiscent of street looks from communist times, appealing to consumers who link such items with their own positive childhood memories. This dimension of aesthetics, communicating symbolic values, ties into branding strategies and particularly into the sociological/anthropological reasons for why consumers use brands as a means of self-identification and social group belonging (more detail on this is found in Chapter 4).

Aesthetic appearance is also used as an indicator of creativity, an aspect of particular importance when thinking about the incentives behind conferring legal protection. Creativity is an indicator of a valuable design. Creativity is measured through various parameters, such as originality, novelty, usefulness, or surprise, which together correspond to the group of 'knowledge emotions' used by psychology to describe the intensity and breadth of aesthetic response. The following examples show how different aspects of design engineering may inspire knowledge emotions and confer value to the product.

A study examining vases, chairs, and lamps inquired about the positive correlation between aesthetics and creativity.1236 Chairs were considered classical products with stable functionality, in which case a design with better aesthetic attributes was held to be more creative. In the case of vases, that is, essentially decorative objects perceived as highly aesthetic, greater aesthetic appeal ensured novelty and surprise, yet reduced perceived usefulness. Lamps were qualified as 'smart products' with numerous functionalities (e.g. intelligent control, speakers, wireless chargers), in which case there was a negative correlation between functionality and aesthetics, namely increasing the usefulness decreased the aesthetic perception.

Another study dealt with creativity and the surprise side of aesthetics. One strategy for raising consumer interest is the use of visual-tactile incongruity,

1233 Ibidem, 362–378.

1234 Theo Mahut, Carole Bouchard, Jean-Francois Omhover, Carole Favart, Daniel Esquivel, 'Interdependency Between User Experience and Interaction: A Kansei Design Approach' (2018) 12 Int J Interact Des Manuf 105. The study examined users' experiences with Toyota cars, identified with notions of 'trust, well-being, and living spaces' (at 129).

1235 Perez Mata (n 1232) 378.

1236 Han (n 1222) 295–303.

that is, giving a new appearance to a familiar product, a new material faking a familiar one, or creating visual illusions.1237 A good example is the series of Rosenthal vases – the 'paper bag' vase with the appearance of folded paper, the 'Fabric' vase imitating a fabric texture, or the 'Fast' vase, showing 'digital acceleration'.1238

Moving on from incongruity to deliberate imperfections, this element also positively influences product evaluation. The impression of the 'human touch', achieved via non-uniform shapes, colours, textures, or handwritten fonts, suggests an increased involvement of human care and attention in the product's creation/manufacture.1239 From the emotional side, the 'human touch' effect answers the basic need for human connection. Studies have shown that the 'hand-made effect' is particularly effective and valued in objects of art and furniture, but also for processed food, as opposed to machine-manufactured foods and unprocessed food.1240 Generally speaking, consumer choices of food seem to be dominated by enhanced aesthetics – consumers prefer attractive packaging to the simply functional, whilst they negatively evaluate any imperfections in unprocessed food, attributing them to insect damage, disease, or reduced quality.1241

Designers are also aware that different product characteristics affect the consumer's overall perception of a product in different ways. It is noteworthy that EU design law operates on the standard of (a design's) 'overall impression' for defining both the basic requirement of protection (i.e. individual character) and the scope of protection conferred by a design, whereas 'overall impression' is assessed by examining the selective impact of product features produced on an informed user.1242 Neuroscience has reinforced the assumption that sound, touch, taste, and smell may have a stronger effect on consumer perception than mere visual interaction. Even when considering just visual perception, colours are known to attract attention quicker than shape or graphics. Such findings seem informative for lawyers, who sometimes underestimate the value that non-traditional signs represent in business strategies. There are many industry-specific design studies that explore which type of features influence the consumer purchase decision for a given type of product. The following two

1242 Art. 6 Reg. No. 6/2002 or Art. 5 Directive 98/71 and Art. 10 Reg. No. 6/2002 or Art. 9 Directive 98/71.

1241 Ibidem, 3–4.

examples support the argument that product/industry studies are useful for grasping the real 'value' of a product, as seen through the eyes of consumers.

In the world of apps and the 'Internet of Things', graphical user interfaces represent the primary tool for interaction between a user and the product's functionalities. A study based on a dataset from one of the largest Chinese Android websites evaluated the behaviour of app users, measured specifically by the number of downloads.1243 It demonstrated that good aesthetic design compensated for lower usability, inasmuch as icons helped users to understand device functionalities and influenced the number of downloads – users positively appreciate the appearance of icons, manifested as their colourfulness, brightness, proper complexity, and slight asymmetry.1244 Taking another example from the automotive industry, designers found that the front emblem, head lamp, radiator grill, tail lamp, and rear bumper were significant components in the recognition of a car, while the general impression of a car was conferred by its three-quarter front view.1245 Such findings are relevant for aesthetic functionality issues, as these parts of a car were usually important in the spare parts aftermarket, which involved the need to copy look and functionality to provide access to cheaper substitutes.

#### *<IP_ADDRESS>. Summary remarks*

For centuries, people have appreciated beauty, reacting positively to contact with aesthetically appealing objects. Exploring the reasons for this initially belonged to philosophical inquiries about perception of the world. The meaning of beauty has evolved over time, and so has the understanding of the mechanisms underlining hedonic experience and its behavioural consequences, alongside the input of new disciplines, such as psychology, neuroscience, design, and marketing. The issue of how a consumer perceives a given product, what kind of value it represents in her eyes, and what determines the motivation to make a purchase, all fall within the interdisciplinary scope of modern aesthetics.

Aesthetics means more than the common understanding of a pleasing appearance. Aesthetics means a combination of appearance experienced emotionally, perceived through sensory information, functionalities, and symbolic content, that as a whole meet a consumer's specific needs. Aesthetics plays an important role in conferring novelty, creativity, and originality to a product – qualificatives that are responsible for stimulating the consumer mind. A consumer's perception of the value of a product is strongly influenced by emotional involvement, imprinted cognitive patterns, and the socio-economic context in which consumer needs have been a priori defined. The author

1243 Mengyue Wang, Xin Li 'Effects of the Aesthetic Design of Icons on App Downloads: Evidence from an Android Market' (2017) Electron Commer Res 17, 83.

1244 Ibidem, 85–98.

1245 Jagtap (n 1237) 380.

agrees with the approach that consumers understand 'product value' in a holistic way. Consequently, when product value translates into commercial value, the decision to purchase a product depends on an assortment of interrelated factors. However, the way the sensory appearance, functional, and symbolic layers of a product mutually and flexibly interact, in order to confer in casu a particular value in the eye of a consumer, is an issue with variable answers. Appearance interacts variously with product usefulness – sometimes it simply compensates for poor functionality, and other times it synergistically bolsters the overall value. In addition, social-cultural benefits resulting from owning a product may convey such significant 'meaning' to a consumer's well-being that this may constitute the primary reason for choosing that product.

In light of the above it may be stated that no theoretical, abstract assessment can properly decide which of a product's intrinsic and extrinsic attributes mingle and confer distinct values in order to answer consumer needs by offering a rewarding aesthetic experience, nor how they do so. Transposing this thought for the purpose of answering the legal issue of what confers substantial value to a product and whether these are features of the appearance, the author sees the need for specific expertise stemming from extra-legal disciplines (e.g. design, marketing, psychology, and neuroscience). Depending on the specificities of the case at issue, each of the disciplines linked to 'aesthetics' may bring distinct elements of knowledge, which when considered as a whole may render a full picture of what the value of a product is in the eyes of a consumer, and what influences a consumer to purchase it. It seems unavoidable that legal assessment will be casuistic, industry-specific, and with variable answers. However, what initially appears to be a deficiency may ultimately prove to be beneficial. The complexity of the phenomenon of aesthetics requires flexible assessment, ensuring that the legal interpretation corresponds to market realia.

#### *8.3.2. A critical evaluation of the criteria applied in EUTM jurisprudence*

This part looks into the criteria advanced to assess aesthetic functionality by EUTM case-law. As 8.3.1. detailed, product value in the eye of consumers is the effect of many rewarding attributes that stem from various sources, thus a query arises over what kind of criteria may help discern such subjective aspects, in order to achieve a clear and predictable legal assessment.

#### *<IP_ADDRESS>. The need of objectivity*

It sounds reasonable that any legal assessment should be conducted by objective means, subject to further judicial control. Here the issue becomes whether it is possible to objectively determine when a shape or another product characteristic gives substantial value to goods, including a priori identification of the values linked to that product.

The CJEU has recently emphasized the need for objective criteria of interpretation. In an extensive discourse concerning the difficulty of applying aesthetic functionality to cultural signs,1246 professor Senftleben drew attention to a CJEU judgment concerning the descriptiveness of the word mark 'Neuschwanstein'.1247 The sign was filed for goods sold mostly as souvenir items, and its descriptiveness was linked to the fact that the name was 'an indication of a quality or an essential characteristic' of the designated goods/services, due to consumers' fond memories of Neuschwanstein castle. The Court rejected the 'souvenir function' of goods, because it did not constitute 'an objective characteristic inherent to the nature of that product', being solely determined 'by the free will of the buyer and … buyer's intentions'.1248 Senftleben reads this judgment as confirming the requirement that product features caught by the functionality prohibition must relate to 'objective properties' of goods. Similarly, any form of cultural expression that reveals subjective content having impact on the value of goods through positive emotions, yet, without precise or objective contours, cannot be challenged under the functionality ground.1249 In *Gömböc*, the CJEU also expressed the requirement for 'an objective analysis, intended to demonstrate that the shape in question, on account of its characteristics, ha[d] such a great influence on the attractiveness of the product'.1250

Putting this argumentation into the perspective of a product's 'holistic value', based on emotions and symbolic meaning, as underlined by studies on aesthetics (8.3.1.), a tension emerges between such need for objective assessment and the complex, subjective nature of the subject-matter under investigation, that is, the product's value in the eyes of a consumer. If CJEU guidance on aesthetic functionality (8.1.2.) requires looking into the consumer's motivation for purchasing the product at issue, by exploring, as held above in *Gömböc*, the 'great influence' a given product characteristic produces on product's 'attractiveness', it is obvious that the assessment must touch upon delicate, elusive issues. In these circumstances, the most suitable option is to try to use and combine any legal criteria that may help to achieve practical, predictable, and fair solutions (see below).

#### *<IP_ADDRESS>. Weighing values against each other*

A weakness of EUTM jurisprudence has been the inability to demarcate between several issues which, as such, should be conceptually distinct:

In theory, all these aspects should have their own independent boundaries, and be examined by means of objective criteria.

It is clear from the term 'substantial' that the examination is one of degree, which necessitates delving into discerning between different sources of value and extracting the parameter responsible for that (substantial) value.1251 Yet the very notion of 'substantial' raises the query of whether one value must be 'predominant' versus another – understood as the being dominant among other, less significant, values – or if it suffices when it merely contributes, along with other factors, to give autonomous value that may be qualified as 'important'. The latter hypothesis would acknowledge that there may be other distinct and important sources of value that together contribute to the overall value of product. The EUIPO Guidelines seem to favour this option by indicating that 'it is immaterial whether the *overall value* of the product is *also affected* by *other* factors, if *the value contributed* by the shape or other characteristic *itself is substantial*' (LB).1252 Such weighing of different sources and values against one another has a significant negative effect on the purpose of clear and predictable outcomes.

The *Hauck* judgment (<IP_ADDRESS>.) advanced a set of criteria for assessing aesthetic functionality, including consumer perception and several others, of an allegedly objective nature. Before going through that list (<IP_ADDRESS>.), it is useful to first consider the different elements that may confer value to a product/goods, together with the type of value attached. The author assumes that *only some* of these elements will be relevant for the functional prohibition (LB). For instance, in *G-Star* and *Louboutin*, the CJEU has already taught that value from reputation should be disregarded. In *Gömböc*, the CJEU mentioned, rather *passim*, that the 'technical qualities' of the product were 'irrelevant'.1253

Certainly, the above table represents the selective choices of the author, and several items listed in both columns may interact reciprocally (e.g. branding strategies impact at various levels, on source-identification value, reputation, prestige aura, societal-symbolic values). The relevance of these elements for applying/dismissing the functional prohibition will be examined below. Another notable point is that the table indicates a set of individual values which may be reciprocally balanced or combined together to determine the product's overall value.

EUTM jurisprudence seems to refer to the product's overall value/attractiveness, understood in terms of a motivational factor leading an end consumer to buy that product. Until now, EUTM practice has considered value as stemming from the shape/product's appearance, whilst measuring it through aesthetic and utilitarian benefits. Bearing in mind the extension of

1251 Voegl (n 1145) 462 notes that it is important 'to dissect a product in its various valueconferring elements'.

1252 Part B sect. 4 ch. 6.4.

1253 C-237/19, para 42.

*Table 8.1* Examples of various sources and attached values conferred to a product

the functionality scope to other product characteristics (colour, sound, etc.), the table is not exhaustive, nor is it fixed regarding the place and value of individual parameter. Future case-law will certainly add new types and sources of value.

#### *<IP_ADDRESS>. Critically examining* Hauck's *factors*

It is worth reiterating *Hauck's* criteria of assessment:1254 the nature of the goods; the artistic value of the shape; dissimilarity from other products commonly used in trade; price difference towards alternatives; promotion strategy touting aesthetic characteristics; and the consumer's perception. These factors are examined below.

• The nature of goods

Following the ubiquity of modern design, the appearance of products is carefully considered so as to capture consumer attention. Good design, as a helpful marketing tool, permeates the nature of any product. Design is not merely about achieving the proper look, but about developing the optimal product, according to given specifications (e.g. putting together appearance, functional parameters, materials, interaction with other components/environment, etc.). If the old aesthetic/functional dichotomy were still in effect, then perhaps the nature of goods would be indicative of those cases in which appearance would prevail, at least for products with decorative purposes (ceramics, jewellery, toys, see *Gömböc*) or collectibles (tableware, watches). These times are past. The EU design regime has abandoned the traditional demarcation between form and function, embracing a modern approach based upon the rationale of 'industrial' design.1255 Transposing it to the ground of aesthetic functionality, the 'nature' of goods criterion is of little use when delineating what is 'in' from what lays 'out' of the scope of the prohibition.

As aesthetics studies have suggested, any kind of product must give consumers 'hedonic valence' by satisfying them aesthetically, emotionally and socially (e.g. self-affirmation, socialization).1256 Extra-legal studies may help to verify the accuracy of EUIPO assumptions about consumer behaviour, for instance whether the purchase decision was based upon the shape of a cookie or the colour/shape of an ice-cream, or whether a vodka bottle is an item sought by connoisseurs. If the *Hauck* rule of mixing functional/eye-appeal

1254 C-205/13, para 35.

1255 Instead of many: Annette Kur, Marianne Levin, 'The Design Approach Revisited: Background and Meaning' in Kur, Levin, Schovsbo (n 130) 3–19; Stina Teilmann-Lock, 'The Design Approach in a Design Historical Perspective' in Kur, Levin, Schovsbo (n 130) 29–48.

1256 Pr ofessor Kur indicates furniture, lamps, and apparel as examples of possible exclusion from protection, in Kur, Senftleben (n 24) para 4.200, 170.

#### 296 *The functionality of signs giving substantial value to goods*

parameters to confer relevant value is to apply, then it must concern all kinds of goods. Thus the criterion of the 'nature' of goods will not be conclusive.

The category of two-dimensional signs may pose additional difficulties. Part 8.3.3. below elaborates upon the interaction between source-identification capabilities, branding, reputation, and the scope of aesthetic functionality.

• The artistic value of the shape

In the EU, the overlap between trade marks, designs, and copyright is acceptable under their distinct terms of protection, which renders it difficult to employ the 'artistic value' criterion to draw a clear-cut demarcation between these regimes, especially when the level of copyrightability is low.1257 Already the *Gömböc* judgment has emphasized that simultaneous/prior design protection, measured on the requirement of individual character, did not imply a finding of aesthetic functionality under the EUTM.1258 Similarly, the *Textlis* ruling, concerning a two-dimensional fabric pattern, held that simultaneous copyright protection is 'without bearing' for aesthetic functionality.1259 Another notable case concerned the attempt to register two-dimensional representations of several artworks of the famous sculptor Gustav Vigeland, which had become freely available after the lapse of copyright. The EFTA Court denied trade mark registration upon a broadened interpretation of the public order and morality rules, 1260 whilst examining several other refusal grounds. The court acknowledged the possibility of applying aesthetic functionality to twodimensional representations of three-dimensional objects (e.g. sculptures1261), especially if the designated goods were furniture or decorative items.1262 However, an important limitation of aesthetic functionality was that it did not apply to services, and goods 'unrelated to [the] initial context' of the cultural sign would also remain unaffected by the 'substantial value' test.1263

Another difficulty of the 'artistic value' criterion is that it requires the court/ administrative body to make judgments about the merit of a work – something which droit *d'auteur* has traditionally aspired to avoid, instituting the rule of protecting works, regardless of their merit – which necessarily leads to subjective appreciation, improper understanding of the values of modern design, and an increased risk of punishing the most creative works.1264 There is also a

time problem, namely determining at which point the artistic value should be assessed – normally this is at the time of filing the sign – however, the status of a sign may transform/diminish over time. The Eames swivel chair, nowadays considered an ordinary office chair, was an example of such dynamism; however, the EUIPO's later hesitance regarding the Eames Lounge chair saw them move the examination period back to the date of application.1265 Sometimes it is very difficult to adduce evidence of facts going many years back.

Finally, appraisal of 'artistic value' frequently ties into such elements as the designer's fame, the history of the design, rare/prestigious materials, and/ or specific craftmanship. The CJEU in *Gömböc* indicated that 'it is in no way inconceivable that the substantial value of this type of item may result from factors other than its shape, such as … the story of its creation, its method of production, … materials …, or even the identity of its designer'.1266 The exact meaning of this enumeration remains unclear. In the author's opinion, the CJEU wanted to exclude those factors from assessment of aesthetic functionality, precisely because they do not intrinsically result from the shape at issue.

The notion of artistic value may also reveal symbolic values, such as conveying an aura of prestige, prestigious life-style, and other cultural-societal attributes, usually bolstered by strategic branding. Notably, promotional activities emphasizing the appearance of a product, sometimes through use of the risky term 'iconic design', were seen to fuel a design's 'artistic value' and increase the chances of the functionality prohibition applying – see the case of the *London* taxi, promoted as a 'design classic'.1267 However, if 'artistic value' appears connected with a bundle of 'other' conferring-value elements, extrinsic to the product/sign at issue and which EUTM jurisprudence tends to keep out of the assessment of aesthetic functionality, then this criterion will be less effective in practice. 'Artistic value' cannot at the same time prove substantial value, and disregard some of its own components which add up to that value.

• Dissimilarity from other products commonly used in trade

This criterion is entrapped by the conflict between proving distinctiveness and falling foul of aesthetic functionality. A sign consisting of a product property usually has to prove its 'significant difference' from similar products in trade, because the more a sign differs from market alternatives, the better the chances are to prove inherent distinctiveness or engage in acquiring distinctiveness through use (Chapter 5). However, if a sign stands out too much, it falls within the ambit of aesthetic functionality – a vicious cycle that has already been criticised.1268 Interestingly, the *London* taxi was found to be dissimilar

1265 Voegl (n 1145) 461. 1266 C-237/19, para 60. 1267 *London Taxi. v. Frazer-Nash …*, [2016] EWHC 52 (Ch) 213 iii). 1268 Kur (n 1133) 26.

from other cars and recognized by the public to an extent which implied added substantial value; yet, the shape was still held to be non-distinctive, and thus invalid, because consumers did not understand that there was a single manufacturer of taxis of that shape.1269 In the appeal, the court even doubted whether consumer recognition of the shape was per se indicative of aesthetic functionality.1270 Such hesitations reveal the uncertainties over how a judge would consider the proof of a different appearance.

Professor Gielen criticised the arbitrariness of judicial assumptions about a shape's attractiveness, considering it 'thin reasoning'.1271 Professor Kur also compared the functionality prohibition to a 'game of chance'.1272 Looking recently at the *Gömböc* ruling, the court inferred from the fact that the sign was a 'tangible symbol of a mathematic discovery' that it made the 'shape special and striking', which resulted next in it giving substantial value to goods.1273 One may doubt here the implied logic of the causal relationship between the history of the shape (i.e. incorporating a mathematical solution) – which theoretically should be disregarded in the assessment – and the specificity of the appearance (read here as differences when compared to previous models) which then equals attractiveness. *Gömböc* demonstrates why dissimilarity of appearance vis-à-vis equivalent products is a sort of double-edged sword, which cannot be sufficient per se for assessing aesthetic functionality.

• Price difference

The *Hauck* judgment did not explain whether the criterion of 'price' described a difference 'below' or 'above' a certain level. EUTM jurisprudence has held the evidence of a higher/premium price (of a loudspeaker, and vodka bottle) as supporting the finding of luxury and attractiveness, and hence, ensuring substantial value. Sometimes a high price may simply reflect better quality of manufacture, materials, and performance, as in the UK case of the *Dualit* toaster, which cost seven times more than other domestic toasters, but offered increased robustness and longevity.1274 However, *Dualit* was priced comparably to other toasters of similar enhanced quality, therefore the evidence of a high price, which resulted also from the brand value, did not prove aesthetic functionality.1275

A particularly notable case concerned the *Louboutin* US litigation, where the allegedly higher cost of production (from adding a red lacquered finish to the soles of shoes) was found 'desirable' by the district court, in the meaning of aesthetic functionality, increasing the aura of luxury/exclusivity typical for the sector of high-end fashion.1276 To a certain extent it might be true that fashion indicates socio-economic status, 1277 so customers of luxury goods choose them precisely because they are expensive. However, the typical understanding of (utilitarian) functionality in US law has correlated cost effects with the situation of enabling manufacturing at a 'lower cost'.1278 Competitors were seen to be impaired or discriminated against if access to a cheaper feature was restrained, or, using the definition of Judge *Posner*, 1279 if it was a feature costly to do without, costly to design around. Such an approach clearly differs from a view focused on a higher/premium price, which US appeal court in *Louboutin* did not endorse, so functionality claims were ultimately dismissed.1280

EUTM experiences suggest that consideration will be still given to high pricing as an attribute of luxury/exclusivity and consumers' preferences for valuable designs. Pricing will also pair with the earlier criteria of the 'nature' of goods and 'artistic value'. Some caution is needed, though. It is worth recalling that pricing usually belongs to larger and extremely complex branding strategies and distribution models, all of which affect the 'value' of a product in a multi-level manner, especially connected with the capacity of source-identification (Chapter 4). If consumers willingly pay to purchase a 'trademarked' product, that is, where the price reflects the value of the badge of origin, then theoretically this should remain outside the scope of functionality prohibitions. In any case, the examination should compare the product and price at issue with alternative offers on the market.1281 Complementarily, evidence of pricing may reveal consumer resistance to a price increase, or their willingness to swich to cheaper alternatives. This issue is essential for competitive need inquiries, which would link aesthetic functionality to non-reputation advantages. For these reasons, an approach focused on 'lower cost' – whether the features

at issue come at a cheaper/optimal price – seems to better serve the assessment of functionality than an approach relying on evidence of a high price.

• Advertisement touting aesthetic characteristics

The role of advertisements for promoting and prompting consumers to purchase any product is unquestionable. As argued in Chapter 4, advertising lies at the core of any branding strategy focused on building consumer loyalty and the repeated purchase experience. Especially in the case of signs, which the jurisprudence usually denies any inherent distinctive character, as with other product characteristics, the evidence of wide-scale persistent advertisement is essential for claiming later acquired distinctiveness. Obviously, advertisements draw attention to certain product characteristics in order to raise the appropriate consumer perception, that is, educating the consumer to see a trade mark, and thus not only a product feature. It seems, therefore, quite disconcerting that what amounts to a marketing imperative to pass the distinctiveness threshold may simultaneously be detrimental to trade mark protection, as the sign becomes vulnerable to functionality objections. Certainly, the issue is a matter of degree, that is, how much emphasis on different values/benefits of the appearance enjoying protection would be acceptable/harmless, and at which point the scale tips in favour of functionality.

Especially in light of the studies discussed in 8.3.1., it appears that any ex cathedra judgment about the input of advertising in cases of an allegedly functional sign would inadequately represent market realities. Courts/administrative bodies should require proofs and expertise from the marketing and branding areas. In addition, comparing the manner in which competitors have promoted alternative products serves to understand better the extent to which advertising has influenced consumer purchase decisions for a broader category of (similar) products.

• Consumer perception

Chapter 5 has discussed the difficulty of integrating consumer perception at the stage of identifying the essential characteristics of the sign. At this stage the query becomes how to use consumer perception as an indicator – among other factors – that a product's characteristics give substantial value to goods. The focal point consists of what lies behind a consumer's decision to choose and purchase the product.1282

Earlier discussions about aesthetics (8.3.1.) argued that consumer perception offers various pieces of information, depending on the vantage point. First, consumer attention is guided by a product's appealing appearance, which means more than sensory attractiveness. Apart from it looking good, consumers appreciate a product's functionalities, seeking proper performance at the right price. Most often, the consumer interacts with the product symbolically, searching for communication benefits, meaningfulness, and the opportunity to show off socially. Exploring the actual mix of these factors requires specific evidence. Second, designers infuse products with content able to induce consumer deliberate behaviour. Studies revealing the design history behind a product would offer valuable information about what consumers seek from that product. From another angle, Chapter 4 discussed how branding strategies and a trade mark's reputation enhance the consumer's experience and personal ties with the product. The US criteria of 'important ingredient' and 'actual benefit' (8.2.1.) may also be analogically used when determining consumer motivation.

However, it seems reasonable to require that consumer perception and behaviour should be evaluated vis-à-vis the product at issue and alternative offers. In such case, this ties into product substitutability, which would balance consumer willingness to pay a higher price for trademarked product features against a cheaper alternative (see 4.4.). It looks also into the constraints competitors face to trade acceptable offers. A recent US study discusses the significance and accuracy of market (survey) studies for functionality purposes (8.4.2.).

Finally, the issue of which parts of a product – perceived visually or through other senses – contribute to conferring the overall impression of a product relates to whether evidence of actual consumer perception is acceptable. This inquiry seemingly shares similarities with the test of the informed user's perception in EU design law. However, establishing the 'overall impression' in design law – for testing individual character or the scope of protection – is considered to be a legal/normative test, conducted without proofs of actual perception.1283 By contrast, because EUTM functionality does not contain a normative model of the informed user, proof related to consumer actual perception should be accepted.

The CJEU in *Gömböc* referred to 'the presumed perception of the sign at issue by the average consumer', 1284 while indicating that the refusal ground may apply 'if it is apparent from objective and reliable evidence that the consumer's decision to purchase the product in question is to a large extent determined by that characteristic'.1285 Keeping in mind the competence of freely evaluating evidence by a court/administrative body, it is the author's opinion that operating with presumed perception without reference to actual consumer surveys and market studies would rarely achieve solutions that correspond to market realia. And it is such solutions that are needed, as CJEU in *Gömböc* reaffirmed

1283 Stone (n 900) 205; Oliver Ruhl, *Gemeinschaftsgeschmacksmuster. Kommentar*, Carl Heymanns 2010, 107, 250.

1284 C-273/19, para 44.

1285 Ibidem, para 47, and judgment's 2nd operative part.

the purpose of preventing situations when 'a single undertaking would distort the conditions of competition on the market concerned'1286 (see 8.4.).

#### • Time factor

Making a clear-cut distinction between value-conferring factors is important for a proper time-dimension of the assessment. What evidence is required at what point of time? The EUIPO has taken the position that examinations should be an '*ex ante* prognosis', that is, relevance is borne by the circumstances/proofs presented at the time of filing for registration.1287 However, if the sign was not previously used in trade, the registrar has to make assumptions about what may presumably determine consumer purchases of the goods. It may be that correlating several factors, that is, the nature of goods, artistic work, advertising campaigns may suffice for an a priori finding of 'substantial value' of goods that corresponds to market reality. However, when the sign has been put at trade and there is a history showing a dynamic change of circumstances affecting, that is, diminishing the value of, the sign/product as compared to alternative offers (e.g. the *Eames* chair or *Dualit* toaster), it is debatable why such changes should be neglected in the assessment, especially in later invalidity proceedings.

Consumer perception develops over time. The Max Planck Study drew attention to the variable public comprehension of a product's attractiveness, translated into the variable advantage of having it covered by the legal exclusivity of a trade mark right.1288 Market realia fluctuate: what amounted to a restriction of competition some time ago may become insignificant if there is currently sufficient competition through substitution. Many attempts to invalidate a trade mark under aesthetic functionality occur years after registration, as the result of a counterclaim submitted in infringement proceedings. Assuming that the key issue of a functionality inquiry is the extent of effective competition on the market, then it seems reasonable to consider market developments and how alternative offers have affected the value of the sign/product at hand.

#### *8.3.3. What should stay 'out' of the assessment*

It seems unquestionable that the value of a sign of properly performing trade mark functions or serving as an asset to build reputation should be disregarded in the assessment of aesthetic functionality. Their delineation from other value-conferring sources depends on the type of the sign at issue and its relation to other jointly used signs (product features). The author considers that if such delimitation cannot be in casu objectively achieved, the choice

1286 Ibidem, para 40.

1287 Rosati (n 624) 12, referring to *Bang&Olufsen*, 72. See EUIPO Canc. Dec. of 31/01/2011, 3525C, 18.

1288 Study (n 627) 2.33.

between conferring trade mark protection or denying it should be decided upon additional criteria, involving a balance of interests. One possible option is to consider the availability of substitutes (8.4.).

#### *<IP_ADDRESS>. Source-identification value*

Product features may be valuable to consumers precisely because they indicate the origin of goods and services.1289 The value of being a badge of origin should not a priori imply aesthetic functionality, otherwise the main incentive of protecting trade marks is compromised. The author considers it useful to use the distinction between the subject-matter commonly affiliated with traditional marks (two-dimensional signs consisting of words, graphics, logos and combinations thereof), and the subject matter of non-traditional marks (threedimensional shapes, with features of colours and/or graphics, sound, position etc.) to introduce additional specificity to the assessment.

• Two-dimensional word/figurative signs

There is significant US case-law on the use of two-dimensional logos/pattern marks, such as 'Volkswagen' and 'Audi' names and graphic logos1290 or Louis Vuitton's fabric pattern consisting of 'LV' initials and fleur-de-lys symbols, 1291 which has left them untouched by aesthetic functionality. The reason that the public chose these goods was not because of the appeal/beauty of the signs, but because of the benefit of source-identification. In the pre-reform EUTM system, individual two-dimensional word and/or graphic signs did not meet the definition of a functional shape, either from a 3D or 2D perspective. Similarly, the combination of a shape with words/graphics fell outside the definition of a sign consisting 'exclusively' of a shape (see Chapter 5). Assessment of the latter depended on whether the words/graphics prevailed over the plain shape, and most cases were tested upon distinctiveness grounds.

Under the new EUTM, two-dimensional signs – *lege non distinguente* – may constitute 'another' product characteristic caught by the functionality prohibition. Professor Senftleben comprehensively analysed how two-dimensional signs incorporating cultural works (paintings, drawings, images of artists, literary works, titles of books/films) could be flexibly affixed for merchandising purposes to goods which, theoretically, should entail different legal effects.1292 A consumer chooses a T-shirt with a Barbie drawing either for the value conferred by the drawing, that is, a case of aesthetic functionality, or because of its use as a trade mark, that is, a case of protection, or for both reasons. Does

1289 Bone (n 268) 239.

1290 *Au-Tomotive Gold v. Volkswagen of America*, 457 F.3d 1062, 1072–1074 (9th Cir. 2006) with further references.

1291 *Vuitton et Fils v. J. Young Enterprises*, 644 F.2d 769, 774–775 (9th Cir. 1981).

1292 Senftleben, *The Copyright/Trademark* (n 125) 395–403.

the first situation depend on the drawing being affixed on the front of the T-shirt, while the second on it being on an inside label or on the rear part? CJEU guidance urges that all possible types of use are considered as a trade mark in the light of the customs of a given industry, 1293 which means that any placement of the Barbie drawing could be indicative of trade mark use. This seems to prioritize the conferring of trade mark protection over the risk of applying functionality. The incapacity of aesthetic functionality to prevent the trademarking of cultural symbols has determined Senftleben to advocate for a separate prohibition de lege ferenda.1294

Following this line of reasoning, two-dimensional word/graphic signs, logos deprived of cultural content, thus, symbolic ambivalence, have much greater opportunities to incorporate source-identification value, especially after marketing and intensive use in trade. For these reasons the author considers it optimal to move this kind of two-dimensional sign out of the inquiries into aesthetic functionality (see 5.4.1295). A fortiori, the same reasoning applies if the signs at issue additionally enjoy reputation (<IP_ADDRESS>.).

• Combinations of product features including word/figurative signs

Product features constitute the central object of the functionality prohibitions. It is because of this that the EUTM legislator decided that source identification should give way to enhancing market competition (Chapter 2). At present, functionality may cover any combination of product features ( Chapter 5). For instance, even position marks, which represent de facto the placement of a base sign on a part of a product, may be tested against functionality, especially if the base sign constitutes a product feature (e.g. colour).1296

Bearing in mind the CJEU's guidance that an essential non-functional feature may dismiss the application of the (aesthetic) functionality prohibition, identifying such characteristics that do not bring substantial value to goods is difficult, especially when the product presents holistic value stemming from various sources.1297 The author considers that if the sign consists of a combination of product features with word/figurative signs – the latter being more capable of source-identification – then, weighing the features against each other will be necessary. The assessment must answer the following issues:

In the author's opinion, the simple addition of word/figurative signs does not insulate the overall combination from being tested against aesthetic functionality. The prohibition would apply if tested word/figurative elements have:

To date, the EUIPO has inconsistently considered the input of word/graphic – a lenient approach denied functionality in the case of a prosecco bottle or the *Dualit* toaster, whilst in the case of *Gibson's* guitar the logo did not suffice to dismiss functionality (<IP_ADDRESS>.). Future practice calls for more clarity.

#### *<IP_ADDRESS>. Value from reputation*

One argument says that making a product 'more memorable' in the minds of consumers – through advertisement and other branding strategies – is a natural step towards a 'reputation-related need'.1298 Recognition and the familiarity of a product matter, as they trigger repeat purchases, and, assuming also stable quality, helps building reputation. If they are supported by source-identification capacity, trade mark protection emerges as legitimate interest. Reputation implies certain attractiveness of the product in the eye of a consumer. This leads to the key issue of whether it is possible to separate reputation-originated attractiveness from the other types and sources of attractiveness which should be caught by aesthetic functionality. Part 4.3. extensively argues why the author finds this to be a challenging task, particularly because of the intertwined relationship between reputation and other brand components, and the lack of suitable financial information to enable separate quantification of these values.

A more workable option is to conduct a binary assessment, as follows.

If reputation is linked to a two-dimensional word/graphic sign used as badge of origin and applied to a product, then it may be possible to exclude this value from a functionality assessment of the product. Such a discarding process is still dependent on the relationship between the reputed sign at issue

1298 In the pharma industry, David Fritch 'Should "The Purple Pill" by Any Other Drug Company Still Be as Purple?' (2006) 47 IDEA 171, 196 argued how patients' strong associations between the pill and the producer/source – thus not between the pill and the active ingredient – might have determined their adherence to the medication scheme, which, nevertheless, was considered a functional therapeutic/utilitarian effect.

and other signs simultaneously affixed to the product being tested under aesthetic functionality (e.g. a logo on the front side of a purse).

However, if reputation is inherently linked to the product feature(s) at issue, then there are no clear and objective means of carving it out from the functionality assessment of the whole sign. Does a consumer purchase a *Louboutin* shoe because of the reputation of the red colour applied on the soles, something also indicative of the origin of the goods, or merely because of its attractive, fancy look? If *Rubik*'s cube is seen as reputed, does the reputation relate to the six-coloured cube being traded, or to the black-and-white threedimensional shape, which was the sign at issue?

In the author's opinion, all these doubts lead to a final query about priorities. Should the value from reputation ensure trade mark protection over the whole (product) sign? Or should the functionality competition rationale overtake the reputation-related interests of the trade mark's owner? The author favours a positive answer to the latter, provided that a proper, market-oriented test would apply (8.4.2. and 8.4.3.).

It is important to stress that the CJEU has not yet had occasion to explicitly discuss reputation in the context of aesthetic functionality. In the *G-Star* case,1299 the CJEU avoided the query (2.2.2.). Other judgments have indicated passim that reputation should be excluded from the examination.1300 However, to date no judgment has indicated any criteria or methodology for how to discard the reputation value from values that may also contribute to conferring (substantial) value to goods.

#### **8.4. Empirically orientated tests**

The following part begins by presenting several approaches that have been advanced in the US scholarship to test aesthetic functionality using values and consumer preferences resulting from acculturation, compatibility requirements, or the specificities of a product's market. One recent empirical study argued that consumer surveys are useful for aesthetic functionality purposes because they reveal market realities, and especially the balancing issue of whether consumers would be better off with, or without, trade mark protection. The latter findings represent the impulse to gather different criteria which can integrate with the *Hauck* guidance in order to outline a market-orientated test, setting EUTM aesthetic functionality within a competitive need perspective.

#### *8.4.1. Consumer preferences, as determined culturally, psychologically, or by compatibility needs*

Professor Ramsey expressed the view that trade mark protection should be refused to signs that contain 'inherently valuable expression' prior to their use as a trade mark, such as an element 'intrinsically ornamental, decorative, informational, or which conveys other non-source identifying messages', offering the examples of the human skull shape, a lion's roar, chocolate flavour, or leather texture.1301 For instance, colours would fall within this category because of their inherent appeal and communicative value, regardless of the context of use. However, the exclusion should not apply to subject-matter that has gained value from use as source-identifier via branding/marketing efforts.1302 This view partially concurs with the approach of professor Bartow, who argues that because any colour has multiple 'pre-existing' social meanings and is always functional, from a utilitarian, aesthetic, or communicative perspective,1303 trade mark protection should be denied by default.

Similarly transposing an upfront denial of trade mark protection for certain types of signs on the EUTM ground goes against the CJEU guidance.1304 In addition, the need to identify an 'intrinsic' societal-cultural meaning – distinct from the issue of artistic value – would require proofs that do not fit easily within the *Hauck* criteria, unless the criterion of 'consumer perception' is used more flexibly. From another context, in the EUTM and design law there is a distinct absolute refusal ground pertaining to public policy and morality, which relates to subjective values/assets accepted by a given society. The application of this refusal ground has demonstrated the difficulty in finding and interpreting standardized values shared by all EU members.1305 This difficulty of subjective, divergent appreciation casts a shadow on the usefulness of criteria referring to societal/cultural norms for the purpose of EU aesthetic functionality (more below).

Another noteworthy item of scholarship presented by professor Hughes read aesthetic functionality as addressing 'product features that appeal to reasonably specific cognitive, psychological or aesthetic biases or preferences that are widespread among consumers and exist regardless of (and prior to) anything the trademark creator or owner has done'.1306 Two further subclasses of functionality are identified: one determined by a compatibility/matching need, linked to 'substantial capital investment' in a complementary product (1) and one determined by consumer sensory response, due to 'evolution or deeply rooted acculturation' (2).1307 Both issues require distinct remarks.

#### *<IP_ADDRESS>. Compatibility standards – spare parts*

Compatibility addresses accessories or complementary products/parts that relate to a bigger product/structure, with a variable extent of matching. Put generally, the appearance of a smaller product (x), being part of a bigger

product (y), depends on the appearance of the rest of the product (y-x) or of the overall combination (y). US functionality practice has offered the examples of the black Brunswick outboard motor, green parts of a Deere tractor, and 'rust-type' roof tile or roof vents.1308 Compatibility draws attention to the legal protection of spare parts by means of various IPRs, and the extent of liberalization needed by the downstream aftermarket. In the automotive industry, spare parts usually copy the appearance of an original part of the complex product, although minor upgrades are customarily permitted (e.g. a modified steering wheel, lights, or wheel rims for a car). The issue of whether non- authorised producers may market quasi-identical parts and for which purposes – for example restoring the original appearance of a damaged product (e.g. a car), a product usually covered by IPRs on behalf of the original producer – engage several conflicting inter ests (manufacturers, insurance companies, and end consumers). Many other products require compatible parts for proper functioning, such as coffee pods (e.g. Nespresso capsules), or printer ink/toner cartridges. Chapter <IP_ADDRESS>., using the example of *Lego*, argued that the compatibility requirement to 'fit' around/in another product may mean performing a 'technical result' in the light of the EUTM technical functionality prohibition. Here the query is not whether a spare part fulfils a technical function – which may be true, depending on its relationship with the complex product – but whether it 'gives substantial value' to the goods.

It is noteworthy that EU design law contains a 'repair clause' that restricts the exercise of a design right against trading so-called 'must match' spare parts of different origins.1309 This enables competitors to market non-authorized parts (e.g. a car bumper) under certain conditions, without risking infringement claims from the part of the original manufacturer. An original part is usually covered by design protection twice over: both individually by element (the bumper) and as part of the entirely protected car. The EUTM, though, does not contain a similar 'must match' exception. Assuming that the spare part, or the overall product, succeeds in acquiring trade mark registration, this may effectively prevent competitors from using the design exclusion. The option to invoke aesthetic functionality appears to be a reasonable solution. After all, what matters to the end consumer is that the spare has the same specific (here

'mimicked') appearance as the original element – sales of mismatched spare parts would constitute an exceedingly small market.

So far, the jurisprudence has been unwilling to apply aesthetic functionality to spare parts. In the US scholars argue that trade dress litigation is shy on spare parts because of the risk of unfavourable precedential judgments.1310 One example of a design held to be functional concerned a *Chrysler* grille, because of Chrysler's competitive advantage and lack of sufficient alternative ways to build grill screens for jeeps (only three). In the EU the *BMW* bonnet/hood was denied trade mark registration by the German Federal Patent Court for reasons of influencing the commercial value of the shape. The decision was annulled by the Supreme Court, which confined the notion of 'substantial value' uniquely to aesthetic appeal, thus discounting other economic factors.1311 Professor Kur thoroughly criticized this judgment, for neglecting the main purpose aesthetic functionality should achieve, that of enhancing market competition.1312

In a post-*Hauck* landscape, assuming that the utilitarian aspects of a product may contribute to confer substantial value besides aesthetic considerations, there are even greater grounds for placing must-match parts within the ambit of trade mark functionality. The author is aware that this puts the legal debate onto the radar of economic-driven policies, therefore any functionality assessment would necessarily require a market-orientated test.

#### *<IP_ADDRESS>. Psychologically-determined standards*

Professor Hughes used the term 'perceptual functionality' to address consumer reactions/preferences, determined either by how the brain works (e.g. perceiving a size-minimizing effect from the colour black, or seeing reflective surfaces as brighter), or through evolution, acculturation, a shared 'western' psychology (e.g. orange colouring for safety jackets, green for eco/bio characteristics, blue for masculine and pink for feminine).1313 Certain limitations should temper the scope of perceptual functionality: the group of relevant consumers should be a 'substantial composite' (a quarter was suggested as sufficient), whilst the simple predisposition towards beauty should not trigger the prohibition – instead, a specific 'pre-existing specific' response amongst consumers is required.1314 Aesthetic functionality should also not apply when the rights holder was the one

1310 Dana Beldiman, Constantin Blanke-Roeser, Anna Tischner, 'Spare Parts and Design Protection – Different Approaches to a Common Problem: Recent Developments from the EU and US Perspective' (2020) GRUR Int 69(7) 673, 689, discussing *Chrysler v. Vanzant*, 44 F. Supp 1062 (C.D. Cal 1999) 1072–1073, https://law.justia.com/cases/federal/ district-courts/FSupp2/44/1062/2567958/

1314 Ibidem, 1255, 1278.

1311 BPatG (2005) *GRUR* 333 *Kraftfahrzeugteile*; BGH (2008) *GRUR* 2008, 71 – *Fronthaube*.

1312 Kur (n 1133) 12–13.

1313 Justin Hughes, 'Cognitive and Aesthetic Functionality in Trademark Law' (2015) 36 Cardozo L. Rev. 1227, 1253–1255.

who first introduced the product features, or when the particular design is 'one of many ways' of fulfilling consumer preferences.1315

Under the EUTM, such an approach risks raising an over-inclusive automatic response. If a new/specific product feature is sought by consumers in the products of competitors – becoming a kind of market standard, must-have feature – then this may risk too easily including aesthetic functionality, despite the hypothesis that a consumer's purchase decision was determined by the source-identification performed by the feature. Objective evidence is needed to analyse the context of use and prove pre-existing standards within a relevant target market. Sometimes there may be familiar situations of cultural/ psychological meanings ascribed to a characteristic, for example the colour red, often associated with 'gala spirit', 'performance', 'celebration' (red ribbon cutting and red-carpet events).1316 However, most commonly, it is difficult to formulate such ready-made assumptions about consumer tastes. Taking the example of modern design, would floral patterns on china or baroque-style silverware decoration suit the taste of today's consumers? Assuming that trends and design-awareness evolve over time, the assessment would apparently need evidence of the actual cognitive response of consumers – apart from other kinds of design, marketing and branding information. Is the EUTM judiciary ready for such a step? The author doubts it. The practice to date has troubles even with admitting the evidence of alternative products.

Hughes acknowledges that the issue of pre-existing consumer preferences can be used 'in conjunction with a court's market competition analysis'.1317 The author considers that inquiring into market realities is the right approach to test aesthetic functionality. Another scholar recently advocated for a 'more contextualized market-orientated examination that considers "both" industry practices and competitive necessity'.1318 Such requirements are examined below.

#### *8.4.2. Consumer preferences via market surveys – a US study*

In the US law courts/trade mark examiners conduct the assessment of functionality, without reference to consumer surveys. A recent research paper critically argued that consumers are better placed than judges when it comes to balancing the benefits of protecting trade dress as a badge of origin against the costs of prohibiting competitors of copying trade dress features in order to offer cheaper alternatives.1319

A randomized study was conducted with 1000 Amazon Mechanical Turk participants, who were asked to decide whether they would be better off if trade mark/dress protection was maintained for several well-known products (displayed on photographs) which had been the objects of litigation upon functionality objections.1320 These items were: Louboutin's red shoe sole, Gucci's criss-crossing 'Diamond motif' affixed on canvas, 1321 the Maker's Mark 'red drip wax seal' on bourbon bottles;1322 the 'Bubble Genius' transparent packaging featuring elements of the periodic table on soaps;1323 the Wallace baroque silverware pattern;1324 the Emeco Navy chair;1325 and Adidas tennis shoes with a 'raised mustache-shaped coloured heel patch'.1326

Different sets of questions tested consumer preferences. In an all-or-nothing scenario of protection, only a small majority of 53 per cent and 55 per cent opted for non-protection of the Adidas and Louboutin shoes; however, a significant majority (ranging from 58 per cent to 71 per cent) preferred a lack of protection for soap packaging, silverware, and the chair. Interestingly, 70 per cent selected perpetual protection of the Gucci pattern, even if applied to highly unrelated products such as haemorrhoid creams and electric drills.1327 Even in the case of offering more guided options (i.e. telling consumers about the potential benefits of protection, or including the possibility of a 14-year term of protection), this did not effectively modify the previous protection/no-protection options.1328 However, when more ambivalent options were added ('unsure/don't care/no opinion'), this reduced the number of respondents choosing to permit no protection. Ultimately, when of limiting the scrutiny to the group of unforced consumers, a majority chose no protection for Wallace silverware, Bubble soap, and the Emeco chair, yet a significant majority still opted for trade mark protection for the Gucci and Louboutin signs.1329 The latter finding was presumably linked to their status as luxury symbols with important social benefits.

#### 312 *The functionality of signs giving substantial value to goods*

The study argued that 'consumers preferences [we]re restrained and nuanced indicia of functionality. Rather than consumers "gone wild", expropriating trade dress property at every opportunity, we often observed majority preference for continued protection'.1330 The experiment demonstrated a significant heterogeneity of preferences, and a more nuanced response of consumers in case of more guided options. An important finding of the experiment consisted of the disagreement between the judiciary dismissing the functionality of Emeco chair, while the survey proved a clear consumer preference for its no protection.1331 Similarly to the methods of assessing genericness, the researchers argued that consumer preferences, as reflected by surveys, could be instrumental for functionality purposes, as a means to capture the real balance of interests between consumers, trademark holders, competitors.1332

#### *8.4.3. Towards a market-orientated test of the EUTM signs giving substantial value to goods*

Assessing aesthetic functionality in the EUTM system requires the interplay of various criteria, weighing various sources of value in order to establish those giving substantial value to goods. The latter sources have to be objectively determined and closely linked to the product features constituting the sign at hand. None of the criteria advanced by the *Hauck* jurisprudence offer conclusive results (8.3.2.). The input of aesthetics research demonstrates that the reality behind consumer preferences for a product and its purchase is far more complex than can be determined in abstracto by courts (8.3.1.). For this reason, a more suitable method to reach a solution tailored to market realities is to apply a multi-factor test, which combines the *Hauck* guidance with the US approach that focused on competitive need, measured by the extent of alternative, substitutable products. In light of the US *Qualitex* test, aesthetic functionality should apply when trademarking product features at issue would put competitors at a non-reputation related disadvantage. However, information about what consumers actually prefer and seek should also be factored in.1333 The following parts explore the stages of the proposed assessment when a sign gives substantial value to goods under EUTM.

#### *<IP_ADDRESS>. Market definition in US aesthetic functionality cases*

Similar to the case of technical functionality, any examination of alternative/ substitutable products requires the definition of the relevant market (alias product category). This part supplements the examples laid down in 6.4.2. to

1330 Ibidem, 1239. 1331 Ibidem, 1237. 1332 Ibidem, 1240–1242. 1333 Fhima (n 34) 689.

show how the level of specificity chosen for a given product category determines the accuracy of the assessment of aesthetic functionality.

One case concerned the colour black, filed for floral packaging. Registration was denied because the market was broadly defined as the 'floral industry', including packaging, containers and flowers.1334 The registrar found a strong competitive need to use black in that industry, due to symbolic messages of elegance, mourning, or Hallowing festivities. This case was in line with the approach towards the 'perceptual', 'communicative' functions of colours (8.4.1.), however, the assessment was criticized as being based more on presumptions about the competitive need to use black than on a properly defined product market including relevant stakeholders.1335

Another notable case concerned the trade-dress of a specific type of ice cream, found functional in a market narrowly defined as the 'flash frozen ice cream business'.1336 If the market had been 'ice creams' or 'soft-serve ice creams', perhaps the court would have considered the ability to compete through a variety of product features, without the need to copy the specific features of colour, shape, and size of the ice beads.1337 By contrast, in the case of a diamond-shaped candy, the relevant product was broadly identified as 'lollipops ' – instead of the category of 'diamond engagement shaped lollipops' – so that the proof of alternative lollipop configurations dismissed aesthetic functionality.1338 Putting those cases into the EUTM perspective, both involved a new and specific shape feature (bead or diamond), which attracted consumer interest. If the EUTM *Hauck* guidance had been applied without scrutiny, the very fact that the configuration was interesting/surprising for that type of product would have automatically meant the absence of trade mark protection. Functionality prevailed in the case of the ice creams because it involved the manufacturing functionality of the ice beads. However, when it comes to the lollipop case, a flexible approach seemed justified, as there were no market constraints that would force competitors to copy the diamond shape.

Perhaps the best example of aesthetic functionality anchored in a marketorientated test is provided by the case of a red dripping wax seal on bourbon bottles.1339 The court narrowly defined the market as liquor bottles, without

1334 *In re Florists' Transworld Delivery*, 106 U.S.P.Q.2d 1782, 1789 (T.T.A.B. 2013).

considering other kinds of products that could be sealed by red wax, such as wines or cheese.1340 The judge focused on competition effects, by applying two types of test, both of a factual nature.1341 One was named the 'comparable alternatives test' and answered the question of whether trade-dress protection of features at issue leaves to the use of competitors a variety of comparable alternative features to compete in the market. The court looked at various ways to appealingly seal a bottle with wax, which proved that it was not costly or difficult for competitors to design around and choose an alternative. The second 'effective competition test' answered the question: does trade dress protection hinder the ability to compete effectively in the product market? This time the court noticed that red wax was not the 'only pleasing colour of wax' in a way that its exclusive use by the right holder would put competitors at a 'significant non-reputation disadvantage'. The latter test represented a reiteration of the *Qualitex* terms.

The author finds that looking at the competitive need from two angles, that is, inquiring first whether there are alternatives at a similar cost, and next, whether their use ensures effective competition in the product market, may analogically serve EUTM aesthetic functionality purposes. The inherent subjectivity linked to the choice of the product category by the judge/examiner may be tempered by allowing the body of extra-legal evidence to reflect market realia, and especially to inform the examiner/court about consumer preferences and product choice. Such diversification of proofs, although time-and-money consuming, seems, in total, a better option than solely relying on arbitrary choices by judges/examiners, which, if they are erroneous, also come with high societal costs.

#### *<IP_ADDRESS>. Gathering all the elements for an EUTM aesthetic functionality test*

The first phase of the assessment should consist of discarding those values stemming from source identification and/or reputation (8.3.3.). This exercise is feasible, as long as such values are linked to parts/features of a product that can be autonomously separated from other components of the sign. As argued in <IP_ADDRESS>., in certain conditions this would apply to two-dimensional words/ logos/figurative signs. If the discarding operation cannot be conducted objectively, then the task remains to assess the 'amalgam' of values that are conferred by the product features at issue (<IP_ADDRESS>.), including here the value(s) of sourceidentification/reputation. *Gömböc* recently taught that values unconnected to the product features at issue should not be factored into the aesthetic functionality test. The CJEU has not offered additional guidance as to how to achieve it, yet assuming there is a combination of relevant values, weighing one against another seems an unavoidable step when deciding whether such value is 'substantial'.

The CJEU has also left unexplained how close the connection between a source of value (e.g. the history of the designer, technical innovation, etc.) and the product features at issue should be, in order to include or exclude it

1340 Green (n 1335) 997, comparing the case with the floral black packaging.

1341 *Maker's Mark*, 418–419.

from the assessment. Part <IP_ADDRESS>. argued why using only the *Hauck* criteria, taken either individually or combined, may lead to inconclusive, arbitrary outcomes. Similarly to other types of functionality, testing aesthetic functionality will mostly be a 'matter of degree'. For this reason, the author considers that the optimal solution is to rely on a market-orientated test based upon evidence of substitutable products and consumer preferences.

Such a test does not necessarily reject all *Hauck* criteria. On the contrary, it uses them flexibly in order to capture the competitive need for the product features at issue. The table below shows the manner in which the *Hauck* criteria may be incorporated as parts of the inquiries typical for a market-orientated test. The left column contains the different aspects which sum up to a test capturing the interests of competitors and consumers vis-à-vis conferring trade mark protection to the product features at hand. The right column contains the corresponding *Hauck* criteria, which may be variously used and at different stages of such a market-orientated test.

The author concurs with the view of professor Fhima, holding that consumer perception represents the neglected criterion of the assessment. Inquiring into consumer preferences and motivational behaviour represents an

*Table 8.2* Integrating *Hauck* criteria into a market-orientated assessment

important part of the examination. It sheds light on the complexity of the aesthetic, functional, and symbolic layers of a product that bring value to consumers, influencing the purchase decision (8.3.1.). Interdisciplinary proofs from the field of aesthetics may help to develop a proper understanding of the nature and value of a given product. However, dealing with consumer preferences is subjective, whilst legal interpretations need clarity. Examining and weighing any criteria from the tables above against another involves a lot of attention. For this reason, the author considers that the conclusive role in the assessment should be played by a criterion measured upon more objective parameters, namely product substitutability in economic/competition terms.

The consumer's choice of substitutable products lays at the core of an inquiry focused on the conditions of effective competition in a product market. The factors used to capture the competition environment for the purpose of technical functionality in 6.4.3. may be analogically transposed for the needs of aesthetic functionality. It cannot be ruled out that, due to specific market circumstances, the trade mark holder already enjoys competitive advantages, which although unrelated to the mark at issue, may constitute a leverage position fuelling further 'significant non-reputation disadvantages', once trade mark protection is granted, maintained, and exploited. The query around whether there is a specific public interest in keeping certain product features unprotected should be considered from a competition perspective (see Chapter 4).

It may be argued that the algorithm for assessing signs giving substantial value to goods – as disclosed by the above table – may also serve to identify generic features which consumers look for in products of competitors (see also Part 5.4.3.). As discussed in Chapter 7, the *Hauck* judgment also required that generic features be determined by consumer preferences. This clearly has a possible overlap with the area of signs giving substantial value to goods. Another possible overlap would emerge if features performing technical results are seen as conferring substantial value to goods. By the same token, the current EUTM prohibition of a sign giving substantial value to goods would expand across and replace all the three previously defined types of functionality, that is, generic, technical, and aesthetic sensu stricto. The author does not support such a view. This was not what the legislator intended during the recent EUTM amendments, nor is it the direction in which the development of EUTM jurisprudence is likely heading.

Although such overlaps are possible, and product features may fit one or several functionality prohibitions, the CJEU has preferred autonomous legal interpretation for each of them, and tests based on different sets of criteria. For this reason, the author has opted for the practical option of laying down tests that use the existing CJEU guidance as a starting point, yet which are refined by the use of additional criteria, including the benchmark of product substitutability.

The purpose of aesthetic functionality, as recently developed by CJEU, does not reside in providing a rigid delineation between alternative forms of protection (designs and/or copyright). Instead, it may only be a tool fostering market competition. For this to make sense, a flexible assessment tailored to market realities is required, an assessment that reads market developments in the proper time dimension. In the author's opinion, the courts should distance themselves from rigidly requiring evidence only at the time of filing the sign at issue. Instead, significance should be given to proofs showing the evolution of the market competition environment, including trends and consumer preferences towards a given type/category of product. There are good reasons to hope that this is the direction EUTM functionality practice will take.

#### **Bibliography**

Remiche (eds.) *Technology and Competition: Contributions in Honour of Hanns Ulrich* (Larcier 2009) 139

#### 320 *The functionality of signs giving substantial value to goods*

### **9 Conclusions**

#### **9.1. Why is being 'practical' the optimal choice of a 'second best' solution to EUTM functionality rules?**

The purpose of this book was to find practical solutions relating to the application of the functionality absolute grounds for a refusal of trade mark registration under the EUTM. The emphasis on the term 'practical' is crucial for several reasons.

Businesses have increasingly become interested in registering product features that establish a consumer's purchase decision via a broad sensory experience. In line with modern product research on consumer product experience that integrates utilitarian and aesthetic benefits, business has often used trade mark rights complementarily with other IPRs (designs, patents, copyright) to protect important market assets. The issue of overlapping rights is prevalent in today's practice and cannot be rigidly denied or redressed by rules that easily separate on paper what is so complexly intertwined in reality. Many cases analysed in this book do not fit the black-and-white scenario of subject-matter associated with only one type of legal regime, instead they present complicated rights scenarios with many shades of grey. For example: a product has characteristics that relate to earlier patentable subject-matter, yet these do not form the exact object of the 'claims', it has a trademarked reputed logo, it comprises additional features that together confer an overall unique appearance that also may be protected as a design, trade mark, or even by copyright. Most of the product features covered by overlaps are de facto 'part(s)' of different combinations of features, each individually protected by different IPRs. Such practice benefits from the fact that in EU law there is no requirement to choose a specific form of protection, with no loss of the possibility to apply for a different form, whilst the CJEU acknowledges the principle of cumulation of rights under the autonomous terms of protection of individual legal regimes. The complicated query of whether a legal regime should replace – or have priority over – another one, and which should be primary, cannot prompt straightforward answers.

If trade mark functionality were to be chosen as the legal tool for preventing overlaps and establishing order within the IP system, then the results could not be fully satisfactory, as the limited concept of functionality would inevitably fail to achieve such an ambitious goal. Instead, a far better approach is to settle for 'second best' – that is, using functionality judiciously, as a pro-competitive tool. Bearing in mind that an important concern around overlaps results from how additional and complementary layers of legal exclusivity mingle together to supress competition by substitution, 1 then applying functionality to assess the competitive need for certain product features, measured by the extent of substitutes, could bring tangible, beneficial effects for the practice. For these reasons, this book has explored how trade mark functionality may solve the grey-zone scenarios of product features that fell within the ambit of several IPRs and pose a threat to effective competition.