The European test for predicting the inherent capacity of non-verbal marks such as product shapes and their packaging to be perceived by consumers, without any prior use, as a reliable guarantee of commercial source is that the mark in question must depart significantly from the norms or customs of the sector and thereby fulfil its essential function of indicating origin. (Case C218/01Henkel KGaA v DPUM, 2004 CJEU)
Critically discuss the extent to which it can be argued that this inherent distinctiveness test brings trade mark law perilously close to the test of individual character for design law?
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