A Handbook of Contemporary Research
Edited by Daniel J. Gervais
Chapter 11: Reconciling trademark rights and free expression locally and globally
There is a growing consensus that domestic and international trademark laws must be revised to better protect the right to freedom of expression. Trademark rights have expanded in many ways, and there is significant uncertainty regarding what types of unauthorized third-party uses of marks are allowed. The lack of clear trademark defenses or safe harbors for expression incorporating the trademarks of others can chill communicative uses of marks by critics, commentators, artists, news reporters, legitimate competitors and other third parties. It can also lead to government restrictions of protected expression in trademark litigation via court injunctions that ban the use of another’s trademarked language. In addition, the risk of contributory trademark liability for Internet companies such as Facebook creates incentives for these private entities to prohibit certain unauthorized uses of marks on their websites, remove allegedly infringing content, and suspend or terminate the accounts of users who are accused of repeat trademark violations. Expression incorporating another’s mark is less likely to be stifled by judges or private parties applying trademark law if governments enact more speech-protective trademark laws and provide better guidance at the local and global level on what third-party uses of marks are permissible. Such reforms would not violate international obligations to protect trademarks required by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and Paris Convention for the Protection of Industrial Property (Paris Convention).
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