FREE SPEECH
TRADEMARKS AND FREE SPEECH
IP rights are expanding via constitutional jurisprudence, while on the other hand, human rights, particularly
freedom of expression, are being used to
trump IP rights, says Gunjan Chauhan.
Trademarks have taken on new roles in recent years. No longer restricted to identifying the source of goods and services, they act as navigation tools on the Internet and as metaphors in common parlance, they feature in lyrical compositions, they are icons of style and culture, and sometimes objects of parody, and are oſten subject to critical comparison in advertising.
In fact, the function of identification has almost been overtaken by that of appeal and selling power. A corresponding change in the nature of legal protection for trademarks is only natural. To this end, old remedies—infringement and passing- off—have been combined with new—dilution, initial interest and post-sale confusion—to equip proprietors with stronger and broader safeguards.
However, enhanced levels of protection have, in turn, raised the possibility of the potential overreach of trademark laws. It is precisely here
36 World Intellectual Property Review September/October 2010
that the relationship between trademarks and expressive freedom comes into the picture, a relationship that has been characterised by much unease and confrontation.
Breaking it down
Te tension may be summarised as follows. Registration of generic or plainly descriptive words such as ‘linoleum’ or ‘pilates’ as trademarks could discourage their use in everyday conversation and in commercial speech. Tis would cripple expressive freedom. Popular phrases used in marketing campaigns reinforce the same point. For instance, based on its trademarked slogan ‘Fair and Balanced’, Fox News objected to a book entitled Lies and the Lying Liars Who Tell Tem: A Fair and Balanced Look at the Right, which critiqued its reporting standards. However, the judge opined that the case was wholly without merit and suggested that Fox News’s trademark could be invalid.
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iStockphoto.com / Sean_Warren
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