Research Handbook on Human Rights and Intellectual Property
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Research Handbook on Human Rights and Intellectual Property

Edited by Christophe Geiger

Research Handbook on Human Rights and Intellectual Property is a comprehensive reference work on the intersection of human rights and intellectual property law. Resulting from a field-specific expertise of over 40 scholars and professionals of world renown, the book explores the practical and doctrinal implications of human rights on intellectual property law and jurisprudence. In particular, the chapters scrutinize issues related to interactions among and between norms of different legal families, the role of human rights in development of the balanced intellectual property legal framework, standing case-law of national and regional courts and intellectual property offices reconciling overlapping rights and obligations, and identify the practical significance of different human rights for the exercise of intellectual property rights.
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Chapter 18: Free signs and free use: How to offer room for freedom of expression within the trademark system

Martin Senftleben


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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