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Vol 22 No 9 Sept/Oct 2017

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Trademark Protection and Freedom of Expression: An Inquiry into the Conflict between Trademark Rights and Freedom of Expression under European Law


ISBN13: 9789041134158
Published: January 2011
Publisher: Kluwer Law International
Country of Publication: The Netherlands
Format: Hardback
Price: £100.00



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Trademark law grants right holders an exclusive right to prevent third parties from using a sign. This can readily be seen as the antithesis of freedom of expression, which arguably includes a right of third parties to non-exclusive use of a sign for a variety of purposes, ranging from informing consumers, to voicing criticism or to artistic expression.

Drawing on cultural theory – which has shown that society is involved in a constant struggle about shaping the meaning of signs (including trademarks) – this highly original and provocative book contends that trademark law fails to sufficiently differentiate between commercial purpose and the social, political, or cultural meanings carried by one and the same sign.

The author shows that the ‘functional approach’ to justifying trademark rights taken in current jurisprudence and doctrine is deficient, in that it does not take sufficient account of the fact that trademark rights can restrict the freedom of expression of third parties. Specifically, the exercise of rights granted under the European Trademark Regulation and the national trademark rights harmonized by the European Trademark Directive can cause a disproportionate impairment of the freedom of commercial and non-commercial expression of third parties as protected by Article 10 of the European Convention on Human Rights (ECHR).

The author’s in-depth analysis explores such elements as the following:

  • the economic and ethical rationales of trademark rights;
  • whether trademark rights under European law can be justified by these rationales;
  • how freedom of expression can serve as a limitation to trademark rights;
  • what level of protection such freedom of expression grants to third parties;
  • the role of trademarks of social, cultural, or political importance in public discourse;
  • chilling effects on public discourse that can be caused by the exercise of trademark rights;
  • the interpretation of provisions regulating the grant and revocation of trademark rights in light of freedom of expression; and
  • the interpretation of the scope of protection and the limitations of trademark rights in light of freedom of expression.
In effect, the analysis serves to expand the focus of legislators, courts, and trademark registering authorities from the interests of trademark right holders, who seemingly are granted ever more protection, to the justified interests of third parties.

The critical analysis of existing trademark law leads the author to clearly identify the areas of trademark law in which the law needs to be reinterpreted and the areas in which legislative action should be taken, with recommendations for a number of limitations that should aid legislators in drafting concrete amendments. The new insights and imperatives provided by this book are sure to prove useful to both courts interpreting existing provisions of trademark laws and to legislators who are faced with the challenges of drafting new rules or revising existing laws.

Subjects:
Intellectual Property Law
Contents:
Preface and Acknowledgement List of Abbreviations Chapter 1 Introduction Chapter 2 Trademark Rights and Their Rationales Chapter 3 Freedom of Expression as a Possible Limitation to Trademark Rights Chapter 4 Balancing the Grant and Revocation of Trademark Rights with Freedom of Expression Chapter 5 Balancing the Scope of Trademark Rights with Freedom of Expression Chapter 6 Summary and Recommendations Annex Bibliography Table of Cases Index

Series: Information Law Series

Open Source Software and Intellectual Property Rights ISBN 9789041152282
Published June 2014
Kluwer Law International
£148.00
Variable Scope of the Exclusive Economic Rights in Copyright ISBN 9789041149152
Published May 2014
Kluwer Law International
£140.00
Codification of European Copyright Law: Challenges and Perspectives ISBN 9789041141453
Published December 2012
Kluwer Law International
£127.00
£95.00
Copyright Enforcement and the Internet ISBN 9789041133465
Published November 2010
Kluwer Law International
£108.00
Public Broadcasting and European Law ISBN 9789041125002
Published May 2008
Kluwer Law International
£108.00
£107.00
Copyright, Limitations and the Three-step Test ISBN 9789041122674
Published January 2004
Kluwer Law International
£107.00
£95.00
Data Protection Law: Approaching Its Rationale, Logic and Limits ISBN 9789041198709
Published August 2002
Kluwer Law International
£141.00
The Commodification of Information
ISBN 9789041198761
Published July 2002
Kluwer Law International
£158.00
Copyright Limitations and Contracts ISBN 9789041198679
Published February 2002
Kluwer Law International
£128.00
Copyright and Electronic Commerce
Edited by: Hugenholtz
ISBN 9789041197856
Published April 2000
Kluwer Law International
£126.00
Intellectual Property and Information Law: Essays in Honour of Herman Cohen Jehoram ISBN 9789041197023
Published January 1999
Kluwer Law International
£146.00
From Privacy Toward a New Intellectual Property Right in Persona ISBN 9789041103550
Published February 1997
Kluwer Law International
£158.00
The Future of Copyright in a Digital Environment
ISBN 9789041102676
Published July 1996
Kluwer Law International
£123.00
Challenges to the Creator Doctrine
ISBN 9789065448767
Published August 1994
Kluwer Law International
£93.00
Copyright and Photographs: An International Survey ISBN 9789041197221
Published December 0002
Kluwer Law International
£158.00