Since the 2009 CJEU decision in L’Oréal v Bellure the idea that a brand's image is the property of the trade mark owner has become increasingly entrenched within European trade mark law. Brand image is now protected even where there is no harm to the underlying mark. However, the courts have largely failed to acknowledge the radical ways in which the marketplace for goods bearing trade marks has changed during the past three decades. One key shift is that businesses and marketers no longer view the brand creation process from a top-down 'brand performance' perspective, but rather via the prisms of 'anthropological marketing' and 'consumer performativity'. By taking an interdisciplinary approach this article dissects this process of brand creation in the context of European trade mark law, and argues that the law must take account of consumer agency when the question of who should own brand image arises.
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