Research Handbooks in Intellectual Property series
Edited by Christophe Geiger
Chapter 18: Free signs and free use: How to offer room for freedom of expression within the trademark system
The discussion on trademark law and freedom of expression often focuses on cases where the courts invoked the fundamental guarantee of free speech as an external, higher ranking norm to prevent trademark protection from encroaching upon political, artistic or commercial freedom of expression. The present contribution to the debate, by contrast, focuses on different ways of ensuring sufficient room for free speech within the trademark system: • on the one hand, trademark law recognizes the need to keep certain signs free from protection. Signs may fall outside the trademark system by virtue of an outright exclusion from protection. They may also remain free because of a lack of distinctive character; • on the other hand, trademark law can restrict the scope of exclusive rights. The rights of trademark owners may be limited through strict requirements of use in the course of trade and use as a trademark. They may also remain limited because of the application of strict tests when determining a likelihood of confusion or dilution. Moreover, certain forms of use can be exempted from the control of the trademark owner by adopting exceptions. These different strategies can be seen as complementary tools: the recognition of a need to keep signs free prevents traders from acquiring trademark rights in the first place. Restrictions on the scope of protection ensure the availability of signs once trademark protection is acquired.
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