 So let me introduce myself. I'm Jennifer Davis, and I'm hosting the first webinar of CIPL for this term, and indeed for this academic year. And I'm very pleased to be welcoming Dr. Ilana Ferma to give the talk today. And Ilana is a reader in intellectual property law at UCL in London. She's the Deputy Director of Research Studies and Co-Director of the Institute of Brand and Innovation Law at UCL. She has published widely on all aspects of trademark law in the UK, the US, and in Europe. Her recent book, The Confusion Test in European Trademark Law, which she wrote with Dev Ganji, has been described as essential reading for all those who work in the field. It was published in 2019 by OUP. And today, Ilana is gonna talk to us on substantial value as a key to functionality in trademark law. So Ilana, hand over to you. Thank you very much, Jennifer. And thank you very much for all your efforts in organizing this seminar. It's a pleasure not to be in Cambridge with you today but to be hosting nonetheless. And I will now, oh, I am doing this in the wrong order, but I will now share my screen. So this is very much a work in progress. It was my COVID paper, the one that I've been writing over the COVID period. So still working on the actual paper, but which is why I'm showing you a PowerPoint instead of giving you a full paper as I might have hoped. So as Jennifer's mentioned, what I'm proposing is that we see substantial value as the key to functionality in European trademark law. To give you an overview of what I'm going to talk about, what I'm going to argue is that we should have a single functionality action based on substantial value. Now, I feel somewhat heretical in saying this in the sense that, for example, the Max Planck Institute has suggested getting rid of the substantial value head all together. But I actually think it's a very good thing to look at and to ground our functionality doctrine in. The reason that I propose this is that I would argue that substantial value reflects what it is that competitors need in order to compete. I think that's the rationale behind the substantial value clause of the functionality exclusions. And what I will do is I will take you briefly through some of the other scholarly and other suggestions for why that subsection is there. And I think I would argue that there's no other satisfactory scholarly explanation for why substantial value is there. But more than that, in a more sort of positive note, if we look to the course of justice's recent expansion of the definition of value, so they have not only identified the interests of competition as the rationale behind both substantial value and other forms of functionality, but they've also very much broadened out the grounds of the sorts of value that can be looked at under the substantial value clause in a way that takes into account both sort of our aesthetic functionality but other forms of value as well. I'm also going to take a look at the marketing and product design literature. And I will argue that this literature supports the course of justice's approach and supports this expansion of the definition of value. And more than that, it suggests a sort of holistic approach to what it is that consumers value in a product that takes in both the sort of traditional technically functional and the aesthetically functional but also other things like cultural and other sort of sociological forms of value. I'm going to round off with some suggestions for how we can then adapt to the way substantial value is interpreted to better reflect these competitive interests and to make sure that what we are barring from registration is limited to those values or those aspects of products that competitors need in order to compete. Just a quick reminder of the functionality exclusion that we find in Article 4.1E of the Trademark's directive and of course all the other equivalent legal provisions. This bars registration of signs which consist exclusively of, first of all, signs which result from the nature of the goods themselves. Second of all, the shape of other characteristics of goods which are necessary to obtain the technical results of our second indent and our third indent, the shape or other characteristic of goods which gives substantial value to those goods. And it is particularly on this third indent and to some extent on the second indent that I will be focusing. So first, why do we actually have a substantial value exclusion? So I'm going to argue that it's about protecting the interests of competition and competitors but we'll just run through some of the other possible explanations and I'll try and explain why I don't think these necessarily work so well. So perhaps first and most obviously is the idea of accumulation. So if you look at the technical functionality grounds and the case law like Phillips and Remington and Lego, et cetera, I think front and centre of that case law is the idea of avoiding overlaps with patents and the idea that if you give trademark protection where there is or has been a patent then you will expand the scope, not just the scope of protection but actually the length of protection and basically things that are meant to fall into the public domain at non the expiry of the patent will not do so. I don't think this justification works so well in relation to trademarks. First of all, I think it's inherent in the trademark system and also in the copyright and design system that there will be overlaps. If for example, if you think about a trademark in a figurative mark, there will be a little picture in there and most likely that little picture unless it's quite old will be protected by copyright. And we have no problem there with an expansion of protection or infinite protection. The other thing I would note and I don't think I'm the only person that's noted this is that when it comes to a trademark it's sort of extending patents. I think that's a live concern because your patent lasts for 20 years and your trademark lasts forever. However, when it comes to copyright your copyright potentially lasts for the life of the author plus 70 years whereas still your trademark lasts forever. So yes, it does expand the duration of protection but that protection is already pretty long. So I think these are some obvious reasons why accumulation isn't necessarily a sort of convincing explanation for the third indent. The other thing and the other point I would make is a point which is made by Kerr which is that actually it doesn't really work to sort of say you can't protect by trademark something that has been protected by a design or copyright because you're going to then have to unpick the copyright or sign protection. It's easy for patents. For patents you have a patent and you can look at it. For copyright in particular there's no formalities so there is no document that you can look at and say oh well that's something that was protected by copyright so you're going to have to go into whole evidential exercise. Kerr also argues that that's the same for designs because when we're looking at designs where there isn't a substantive examination then you're going to have to then look at the validity of that design ex-post. Another possibility is aesthetics. I think it was assumed for quite a long time that the second indent was there to stop an overlap with patents and to not protect technical things and that the third indent was there to stop an overlap with copyright and therefore not to protect beautiful things. And then if you look for example at the Benelux sort of provisions prior to harmonisation on which this was arguably based one of the examples that they give is an example of a crystal service and this crystal service is very beautiful and therefore this isn't quite the right kind of thing to be protected by trademarks. I don't think this is necessarily a safe assumption for a number of reasons. I think the first and most fundamental thing is if you look to beauty, who can identify what is beautiful? There are oceans of inks built about what's beautiful, what is artistic. I think these are philosophical questions that we don't necessarily want to engage with in trademark law. Also what I would ask is what's so special about beauty? Why do we focus on beauty as the kind of value that we don't want to protect? Now the copyright accumulation answer might be a bit of the answer but even that I'm not sure it's right because you don't need to be beautiful to get copyright protection. I think it's under-inclusive as well to concentrate on beauty because you have the example of things which are aesthetic but you wouldn't actually think of them as beautiful. An obvious example I think is our trip-trap chair from the Houtcase is quite pleasing to look at. It's a nice neat shape. It's aesthetic but it's not beautiful. And then even looking outside of the broader definition of aesthetic there are other kinds of value that we just don't catch if we focus on the aesthetic. Again, looking to the trip-trap chair case we had the value or the values identified of safety, comfort and durability. Or to take it even more wider we have Justin Hughes's strawberry ice cream example. Now what he says about strawberry ice cream is if you think about that pink colour of strawberry ice cream it's probably food colouring. It doesn't really make it taste any better. It doesn't really do anything to the product as such. And yet when people go to look for a strawberry ice cream they will look for something pink. We've been conditioned to expect that ice cream strawberry ice creams or strawberry flavoured things will be pink. And I think this opens the door to other kinds of value. The idea that consumers certainly expect certain things. And if consumers expect their strawberry ice cream to be pink then any competitor wanting to produce the strawberry ice cream will need to have it pink. And it sounds perhaps like an outrageous example but there is a case, the Dippin' Dots case in the US where the pink colour formed part of the proposed trademark. Another possibility is that the substantial value provision is acting as a proxy for distinctiveness. This was the previous German approach. The German approach was that aesthetic shapes were unlikely to serve as trademarks and therefore they shouldn't be registered as such. I think the Max Plancker report also sort of kind of implicitly agrees with this idea in the sense that they propose that you could delete the substantial value exclusion and it wouldn't matter because those marks could not would just would not be distinctive so they would still not be registered. Now, I think all of this may well be correct but I don't think it sufficiently takes into account the idea that actually consumer perception is fluid. So what starts off as functional, a purely functional or maybe even purely aesthetic will become recognised as trademarks. And it won't matter if consumers, not consumers, sorry competitors need to access this mark because under distinctiveness you can acquire distinctiveness and it will fall into the sole hands of the person who applies to register it. So I think it's dangerous to sort of view the substantial value exclusion and there's a shortcut for distinctiveness because while there's an overlap I don't think that they're doing quite the same job. Another interesting justification is proposed by Quadleg where he says that actually the substantial value exclusion has got a particular role and indeed a competition-based role in ensuring that what copyright and designs leave in the public domain should stay in the public domain. So rather than it being accumulation provision it's actually going further than that and saying there are certain things that copyright and designs refuse to protect. And trademark law should not then be able to come in and sort of like allow those things to be propertised. What he particularly talks about is basic styles and ideas. So he gives various examples one of which being the idea of a female doll an adult female doll, hence our Barbie in this picture. I think this is a very interesting idea and I think it's also something that kind of comes to the fore when you look at the US cases where a lot of the aesthetic functionality cases now are about very basic things like circular towels, burl up sack for wrapping flowers in. Those kinds of concepts and ideas it's interesting but I think it's narrower than what is actually needed to protect competitors. So what I would propose is that in fact what we should see value as is protecting competition. This is something which does come up in the academic commentary. Sue, this on in a MIMLA relatively recently have talked in general about functionality and have across the different intellectual property rights and have argued that the CJEU is developing an autonomous approach to functionality across all the intellectual property rights based on ensuring that protection does not unduly restrict market freedom and competition. So this is a very general claim about functionality and I think you can see examples in the academic literature of scholars actually sort of drilling down into the substantial value provision in particular. So for example, Kerr writing a number of years ago straight after the Bang & Olives in case said that the substantial value test should focus directly on competition concerns. Eleonora Rosati has said something very similar in the recent article that she wrote on the third indent and I think it would be remiss also not to talk about Graham Dynwoody's death of ontology article from the US. Now, I got a bit disturbed when I read Graham's article. Not that it's not brilliant, but I sort of thought, I did, this is essentially what I'm arguing. And in some ways I think this is what I'm arguing but he is speaking in the US context and I think we can kind of bring this across to the EU. He, I think he was writing in 1997 that you could view competition as a rationale behind both the aesthetic and utilitarian functionality in the US, which I think is a really interesting and helpful idea and he argues therefore that one should have a unitary action, a single action for functionality in the US. I think it's difficult to say that this is how things have panned out because very soon after he wrote this article, then you had the traffic's litigation and the traffic's litigation I think suggests that whether you call it unitary or not, you do take a slightly different approach to assessing utilitarian compared to aesthetic functionality. But I think the idea is there though of having a single action and one which is justified by virtue of the effect on competitors. Now, this is what the scholars have said. I'll look now to the Court of Justice's move towards competition based view of value because I think if you look at the recent case law, you can really see this happening both in terms of the Court of Justice broadening the meaning of value to take in non-aesthetic features, the registration of which might interfere with competition but also explicitly recognizing and identifying competition as the rationale for the substantial value exclusion. So looking at our first step first, I think you can view a sort of gradual, I don't know whether to call it expansion or clarification through the case law. So if you start off with the B and O case, the causes that the fact that the shape is considered to give substantial value to the goods does not preclude other characteristics of the goods from such as the technical qualities from also conferring considerable value on the goods issue. What you had there was the Bang and Olufsen as sort of slender speakers. And I guess they worked very well and made the sound good. But at the same time, there were the kind of thing that you would quite like to have in your living room. They were stylish, they were nice. And I think this case was sort of generally accepted to kind of be suggesting that our focus on the third indent remains on aesthetic functionality. But the fact that you have something which has a mix of aesthetic and technically functional features doesn't preclude the third indent from applying. So you can have single goods basically which could potentially be barred from the second and third indent. I think this goes slightly further in the Halk judgment. In the Halk judgment, the court says that the fact that the shape of the product is regarded as giving substantial value to the product does not mean that other characteristics may not also give the product significant value. So, and the possibility of applying the third indent should not be automatically ruled out when in addition to its aesthetic function, the product concerned also performs other essential functions. Now, this was somewhat ambiguous because it could mean like we understood with Bang and Oliveson, that the fact that you have other functions doesn't prevent the third indent applying but will only look at aesthetic value under the third indent. Or it could mean that you will look at the presence of non-aesthetic value as being a part of your substantial value as well. So here you had a chair that looked quite nice but also was safe, comfortable and durable. So could those features certainly didn't block the third indent from applying but could those features be actually considered under the third indent as well? So some uncertainty there which was cleared up in Gombot case this year. What you have here is basically the solution to a mathematical puzzle. It's a thing. And this thing is something which basically however much you try and push it, it will always self write. The court doesn't seem to have thought that this was particularly beautiful or even particularly aesthetic. Although I think it looks quite pleasing but the value they identified is that this is a tangible form of a mathematical discovery and that could add, they said, the right sort of value. And they say a shape which gives substantial value to the goods is not limited to a shape having exclusively or artistic or ornamental value but also you could have substantial value to the goods as a result of other relevant factors. And the court doesn't really talk about what those other relevant factors are but they do talk about the shape being dissimilar from other shapes in the market which I think is quite notably not something necessarily to do with the aesthetics of the shape. Looking now to the rationale that they propose for the way in which they have applied the substantial value and sort of expanded the substantial value exclusion. I think what you can see through the cases even through the early cases is an idea that there is a link between our second and third indents in terms of what they're out there to protect. I think when you start off in Phillips and Remington you have the advocate general identifying that both are about preventing the exclusive and permanent right which a trademark confers from extending the life of other rights. So this is kind of like a kind of cumulation argument. I know I said that I didn't think the third indent was necessarily about cumulation but I think the point here is that you have a shared rationale for both arguments or for basic exclusions rather. In B&O the court, the general court talks about the fact that both are needed to avoid monopolies. And you have the same idea in HALC where the court talks about the substantial value exclusion as being there to prevent the monopoly to... Well, first of all you have the sort of aim of preventing trademarks from extending other rights. So a kind of cumulation argument. So it's kind of similar to the cumulation argument that you have under the second indent. And then also the objective of protecting monopolies from developing in the essential characteristic of goods. So this kind of aim of avoiding cumulation and objective of preventing monopolies is very much something that you see in Phillips and Remington, Lego, et cetera. I think the clearest indication that really what we care about here is preventing monopolies is from the advocate general in the Liberton case. So in that case he talks about the second indent as preventing monopolies as I put for you but also about the third indent as preventing the monopolization of external features which are essential to the market success. So again about stopping people from taking or trademark applicants from getting an unfair advantage over their competitors in a way that they shouldn't have. So having looked at all of those, what I would argue is that you have an overlap between the second and third indent in terms not only of what they exclude but also in terms of their justifications. And if that is the case, what I would ask is why do we continue to have to separate provisions? Does it matter if there are overlapping provisions? Why am I so concerned about this? And for this I don't think I can do better than to go back to Dern Woody's death of ontology argument where what he says I think very powerfully is that it does matter. We should be honest about what's really happening here. If we've basically got the same calculus being performed under both kinds of functionality we should be honest about it. Because what we end up is by making obtuse doctrinal distinctions and tests that consume the attention of litigants and courts to no great effect on outcome of the case. So basically people will be arguing about what's technically functional, what's aesthetically functional, what's something else. And the trouble with this he argues is not only that you're forcing litigants to have pointless arguments but also that you lose sight of the broader concerns underlying these arguments. And therefore the courts get very concerned about what exactly is technical, what exactly is aesthetic, et cetera. And then they lose sight of why these provisions are here which is about the protection of competition and competitors. I think I would add to that that duplicative litigation isn't necessarily a good thing at all. So yes, maybe you could kind of argue that it doesn't really matter because you'll end up with the same outcome if you're arguing that something is say has adds technical value under the second indent and the third indent. But why put parties to the difficulty and expense of sort of needing to make this sort of double belt embraces argument. The other thing that I would suggest is that and this is what I will come to next is that viewing value as an integrated whole is something which reflects how consumers perceive things in the real world. And what consumers value I think is the key to what it is that competitors will need access to in order to compete. And this is what I will turn to next. So in this part of my talk, I want to look outside of the law and might be asking yourself, why look outside of the law? Why do we need to look outside the law to work out what value is? And what I would argue is that if this is all about competition and allowing competitors to access what they need in order to appeal to consumers, we need to know what consumers really value. And I think we've struggled on this in trademark law. You just need to look at the Benelux pre-harmonization situation where they basically went around the house as arguing that it was aesthetic. It was about market value. It was about something else. It was only about 3D shapes, et cetera. They just could not. This is not an answer I think that you can find within the law. To work out what consumers value, you actually need to look at what consumers value. And there are a number of different ways of approaching this. I picked on two in particular, I think, which I think are helpful because they're about how sort of what those who are selling goods to consumers and those who are creating goods for consumers think really apply. So I would look first of all to emotional design. So a number of kind of examples of the theory. One is Norman's classic approach and he argues that there are three levels of processing. And he says that there's the visceral, which is an automatically evolved response to human needs and avoiding danger. So I think we're drawn through to pleasant sensory experiences, smiles, smooth surfaces, et cetera. The behavioral, which is how the product works. And also reflective consciousness, higher level feelings, emotions and cognition, interpretation and understanding. And these are values that are moulded by culture and experience. Now, when I started off this project, I thought, great, we can divide the, you know, we've got three indents in the directive and we've got three levels of processing. So the visceral must be the first and the behavioral must be the second indent and reflective consciousness must be the third indent. On reflection, I don't think this is correct. I think what Norman is driving at is that you have a single product and there are aspects of it that can potentially appeal to all our different kinds of processing. So I think the Gombok provides a beautiful example of this. So if you look at the Gombok, I don't know about you, but I want to pick it up and kind of have a fiddle with it. Look at all those lovely sort of smooth surfaces and planes, et cetera. Let's put the behavioral in terms of this is a thing that works in the sense that if you push it, it will always self-right. And then there's the reflective consciousness, which is the fact that this is the solution to a mathematical problem. And it sort of becomes a sort of status symbol to buy this thing that people have researched on and worked out and kind of makes you a bit classy if you do that. So that's Norman's emotional design. Another protagonist of emotional design is Patrick Jordan. What I think is really noticeable about his theory is that he takes this holistic view of the user. And the user I think is seeking out these four pleasures. So you have the physio pleasure that you get from the sensory, the socio pleasure that you have from a relationship with others, psycho pleasure in cognitive and emotional reactions. And ideo pleasure from aesthetics and values of product and bodies. So in some way, quite similar to Norman's approach in terms of just recognizing things in the round and that a single object can have various values, but also that a single user can be seeking out various things in a single product. So he's at Jordan in particular, I think is very much user centered. It's all about the consumer and what's the consumer looking for? And sort of really kind of almost typecasting the consumer and working out who that consumer is and working out what he wants for a product. So if you read the book, there's a bit about, what's she called Janet, Janet Peters, I think, who is a 23 year old accountant from Reading and just literally going through all, bit by bit, all the things that she would want in a particular product. So this kind of multi-led, but very much person centered approach. So those are a couple of examples of product design. Looking now to marketing, I think what you see in the marketing literature also is identification of what it is that consumers would want and how you can make the product appeal to those desires. So I think like the granddaddy of marketing is, or consumer value in marketing rather is Morris Holbrook. Now he's got a kind of complicated theorem, but the take home message for today is that he comes up with a typology of consumer values and he looks at various things that consumers might want from their product. So either they'll want efficiency or quality. So I think quite similar to our idea of technical functionality, politics and esteem, which might actually overlap a little bit with esteem towards and from others. So actually just the fact that you're buying into a trademark, play, aesthetics and morality and spirituality, which I think is slightly more difficult to relate back to what we do in trademark law. Another example is Anquest et al. Now I could have written you a description of it, but there's no point because I think the thing that makes the impact is the elements of value pyramid. And what I think is really interesting about this is sometimes one might wonder like why are we struggling with defining value under the third indent? Well, if they're right and all of these things are value, then there's an awful lot to be taken in there. I think it's very interesting because I think it gives us leads on what we might think of as value. But also there is an idea implicit here that you can have more than one type of value in a single object. They organise it as a pyramid, not because one is more important than the other, but rather you will need probably at least something from the bottom to get yourself, to have consumers even consider the values at the top. It's like your self actualising product won't actually work if it breaks and it fails the functionality bit at the bottom. Personally I'm quite drawn to Jag Sheth and his compatriots description of why people buy what they buy. I think it's quite nice because this is something that I found personally quite accessible as a lawyer in the sense that you have your broad categorisations, but not too many of them. So really we can understand the sorts of things that can be value or the consumers will value and note that again they take in a wide range of values. So from our physical performance, so the functional, social, which may be closer to trademark law, but also kind of emotional and epistemic. So the idea of actually engaging with the product, enjoying it, getting some kind of value from it, not beyond it actually working, but sort of liking the product, et cetera. So I think this was something that quite spoke to me, a, because of the sort of neatness of the organisation, but also because again it takes in the idea that a single product may have multiple values. So what can lawyers learn from design and marketing? I mean there is a wealth of literature out there, this is just the tip of the iceberg, there's lots more interesting stuff I think that we can bring to bear on functionality from that literature. But what the key take-home points that I would argue for today is the idea, I think throughout all of the literature that we have a kind of holistic consumer and a holistic product, got a person that will be looking for a wide range of things in a single product, and that single product it's just given will embody multiple values. People don't just look for things that work well, they look for other things as well, things that look nice, things that have a backstory, et cetera. Particularly in today's day and age where we're sort of quite technologically advanced, sort of just like technical function isn't enough. What I think is quite interesting is that there's a kind of almost levelling up in the sense that what's technically functional in a lot of the theories is pretty much at the same plane as the sensory and the cultural, et cetera. I think we're very used to sort of carving them out in trademark law and saying that technical functionality is perhaps more important than other forms of the value under the third indent, for example, the aesthetic. I think what our marketing and design literature shows us is that people are looking for a sort of rounded product and both are important. Obviously value goes beyond the visual, we're not just worried about what looks good at the very basic level, we're also worried about other senses, so what feels good, what smells good, et cetera, just like in the round, something that people value. But also that value comes from other sort of, from things which aren't necessarily inherent in the physical nature of the product but are embodied in the product. So from social and cultural aspects. And I think we can actually see this coming through in our case though. So for example, the Gombok, it's not just about the physical product, it's about what the product represents, which is the solution of this mathematical problem. Or in the ground board's decision in the Lint case or about the Easter bunny. So it's not just that the bunny looks nice in the abstract, it also embodies the tradition of chocolates and Easter, et cetera. And these are things which I think our literature tells us that we can recognize as a value. So just a quick recap. So our cases suggest a single competition based justification for all functionality provisions, or that's what I would argue. I think competitors need to access what it is that consumers value. And our literature shows us that consumers value a wide range of things, not just the technical and indeed, not just the aesthetic. I think it's also the case that there will be multiple values embodied in a single product, but the consumer won't sort of sit there and salami slice those values. The consumer will do a sort of Norman type analysis there, which is subconscious. They have the product and they are drawn to the sort of behavioral aspects and they're drawn to the sensory aspects and the visceral aspects and they're drawn to kind of everything at once. So I would argue that this points to a single action based on value with competition as the underlying driving force. And the question that I will conclude with is how can this be achieved? I think we've got a slight problem, which is that if we adopt a wide definition of value, we can rule out or we could end up ruling out all forms of a trade dress. I use the term trade dress because I sort of struggle, it used to be easy when we were talking about product shapes, now we're talking about shapes and other characteristics. But basically, if everything adds value, then, and value comes from multiple sources, then it's possible that nothing would be registered as, or could be registered certainly as a shape, but also in other wider forms of trade dress. I think this is a problem whether you adopt a single approach to value or if you take a sort of, even if you kind of stay within the framework that we already have, it is still the case that we're gradually expanding after how can Gombok, our understanding of what value is, so there are a lot more types of value that could trigger that exclusion. So I think the challenge is we need to work out and differentiate between what value competitors need to access in order to compete from types of value which are kind of less important and that we don't need to allow competitors to access to. So just to sum up or to round off, I had a number of proposed solutions. Solution one is that we just, if we say that value can in here or can come from anything, then let's just look at value. Let's change our exclusion to say that you cannot register something or I guess a shape or other characteristic of goods that adds value. I think this would be difficult. I think it would rule out the registration of all forms of trade dress because I think everything does add value and product features will not be added to a product unless the manufacturer consider or designer considers that they do add some form of value. But not registering a whole category of marks is not an option under the TRIPS agreement. And to be honest, it's not desirable either, I don't think. So another option is to consider alternatives and to think what is it or to take the approach that there's less competitive need for consumers to access something where it's possible to identify an equally good alternative to the characteristic where the value in here. I think this too is difficult because I think in every case, you would need a market-based analysis of what it is that consumers need sorry, competitive need, but I think more importantly, you'd need to look to the market and see what alternatives are out there and that is going to need some kind of consideration of the all of the products on the market. I think that would be difficult, time-consuming and expensive for the courts. I think it's also notable that that is something that has been rejected in both the US in traffic and the EU in cases from Phillips onwards. So I think there is a view that perhaps it's too difficult. It has happened in relation to aesthetic functionality, but in those cases, you tend not to see a sort of market-based analysis of whether there are alternatives, but just the court saying, well, this is something very basic and therefore we don't think there are alternatives. So for example, in the Jay Franco case, a case about a round towel, the court does not conduct an analysis to the town market. Instead, they say, well, a circle's a basic geometric shape, this is too basic, we shouldn't be protecting this. There's probably no alternatives there. Personally, I think it would also be difficult in the name of protecting competition to step back from what technical functionality has been doing to date. I think it's to adopt a precautionary principle. And I think what the courts have perhaps implicitly done is they've said that the interests at stake, where something is technically functional, is so important, the risk to competition is so great that we're not even going to look at whether or not there are alternatives. We're just going to assume that registering something technical will have an effect on competition. I would feel uneasy about stepping back from that approach, I think. I think it's kind of difficult to sort of in the name of competition, reduce the protection of competition. So I'm not sure about considering alternatives. Another solution might be to emphasize essential characteristics. So briefly, when we look in particular at technical functionality and product shapes for technical functionality, we look at whether the shape or object in question consists of a mixture of both functional and non-functional features. And where there are significant non-functional features, this saves the sign being borrowed from registration. I think this works in technical functionality cases because you're just looking at the technical and technically functional. I think this would be more difficult in our value cases because, as we've said, many elements of a sign may add value, but the wider the types of value we recognize are, the more difficult it is going to be to pick out essential characteristics that do not add value. So I think we'll just kind of default to a situation where everything adds value and therefore everything will be borrowed from registration. And I think this is actually true even if we don't have a single action because this is inherent in the idea of a wide approach to value. Finally, my preferred solution, I think, is that what we need to do is give teeth to the idea of only barring things from registration where the value that they add is substantial. I think we need more work on this. I think it's attractive because it's a way of filtering what doesn't feel with competition and therefore adds substantial value from those that doesn't, but we need some work to get there. If you look at the test that we have, I think that test is, I think it's, I think there's a recognition in the case law that you need something more than just being pleasing and or attractive, but it's not clear how much more. So the factors in the test are not sufficiently developed. So for example, they're rooted in the aesthetic. There's a discussion, one of the factors is, does this shape or whatever it might be add artistic value? But there's no mention of functional value. There's no mention of other kinds of value. I think there's a lot of reliance on circumstantial evidence. So for example, you've got a shape or a product and it's selling for more money than other products in the same category. This is a sort of shortcut to recognizing substantial value, but it's very hard to unpick and to say that that higher price is because of the value rather than, for example, because this is a desirable object because of the trademark. So for example, being on Lubaton shoes that people buy not just because they like the color red, but also because it's a way of showing everybody else how classy you are and how much money you have to spend on your shoes. The other thing I would say is that what we don't do enough of in the existing substantial value test is look at consumer perception. It is true that the courts have, or certainly the CJEU has suggested that it's relevant but not determinative. But if you look at the Board of Appeal cases, I think what this seems to have kind of turned into is a situation where they don't really look too much at consumer perception. You see it a bit, for example, it being looked at a bit, for example, in the London Taxi case, but even there I don't think they follow through fully. But what I would argue is that we should be looking more at consumer perception because our key question here is what do consumers value because it's what consumers value is it's going to drive what they purchase. And driving what they purchase is what you need to allow competitors access to. I think this is clear from the design and the marketing literature where it's very much about looking at what our consumer's looking for. I think, like I say, this comes across so clearly, for example, in the Jordan literature where he details this lady and all of her characteristics and tries to build up what she would want. It's not about asking consumers, oh, why did you buy this product? But more about, oh, although that might be a real evidence for doing so, it's about focusing this test, not on abstract ideas of what's aesthetic but about what consumers actually need. And Jennifer's appeared, I think, to tell me to finish, which luckily I was about to conclude. So as I argue, I would argue in favor of a single action centered around excluding shapes and other characteristics with substantial value. And I think this is both possible and desirable. It should be shaped and informed by the needs of competitors. I would argue that I think this is in line both with the way trademark law has developed but also with the marketing and product design literature. But I think we need to work further on what it is that competitors actually need. And with that, I will finish. Thank you very much, Ilana.