International Intellectual Property
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International Intellectual Property

A Handbook of Contemporary Research

Edited by Daniel J. Gervais

International Intellectual Property: A Handbook of Contemporary Research provides researchers and practitioners of international intellectual property law with the necessary tools to understand the latest debates in this incredibly dynamic and complex field. The book contains both doctrinal analyses and groundbreaking theoretical research by many of the most recognized leading experts in the field. It offers overviews of the major international instruments, with specific chapters on the Berne and Paris Conventions, the Patent Cooperation treaty and several chapters that discuss parts of the TRIPS Agreement. The book can also be used by students of international intellectual property to obtain useful knowledge of major institutions and instruments, and to gain an understanding of ongoing discussions.
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Chapter 11: Reconciling trademark rights and free expression locally and globally

Lisa P. Ramsey


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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