A student asks: "what's the use?" Can you help?

Merpel's still trying to figure out what
pine trees do when they're not posing
for photographers ...

A student from Europe's far and frozen North has written with a question on which she would appreciate some assistance. Surrounded as she is by snow and pine trees (and presumably, at this time of year, pine cones too), she is "pining" for a little response and encouragement from the IP community. This is what she writes:

"I am currently writing a Masters thesis on Article 5 of the Trade Mark Directive ['Rights conferred in a trade mark'], specifically on the conditions of use "in the course of trade" and use "in relation to goods or services".

When reading CJEU case law for the purposes of finding out exactly what is the content of the condition of use "in relation to", I am increasingly convinced that the CJEU has departed from its decision in Case C-63/97 BMW v Deenik, in which it stated that the condition of "in relation to" is understood as "distinguishing use" or use "as a trade mark" or use to indicate the origin of the goods, in accordance with the 11th recital of the Preamble.

The condition seems to have been reduced to a descriptive labelling of what the use consists of (affixing/advertising etc.), but not a material assessment of whether the third party use is use as a trade mark and that the third party sign is used to indicate the origin of the goods.

The material assessment seems to have been moved in its entirety to the condition "affect or liable to affect the functions of the mark" - a condition which (in my opinion) to a great extent muddles the delimination [Merpel loves this word, which she has never previously met. It's not in her dictionary, but she thinks it comes from the Latin limen, a threshold, which means that 'deliminate' would be 'remove the threshold'] of trade mark law with comparative advertising and the unfair commercial practices directive.

My question is: What is your take on the relationship between the condition of use "in relation to goods and services" and the condition of use "affecting or liable to affect the functions of the mark"?"

This Kat nostalgically remembers the olden days when he believed that, in each context where the Directive referred to "use", it clearly meant something quite different.  But what do readers think? Do put his reader out of her suspense and help her to wow the examiners with an outstanding Masters thesis.