Trade Marks and Freedom of Expression: A Call for Caution

University of Queensland TC Beirne School of Law Research Paper No. 10-05

36 Pages Posted: 21 Apr 2010 Last revised: 12 Oct 2012

See all articles by Robert Burrell

Robert Burrell

University of Melbourne - Law School

Dev Saif Gangjee

Faculty of Law, University of Oxford

Date Written: April 20, 2010

Abstract

Over recent years there has been growing interest in the relationship between trade marks and free speech. United States academics have argued that we should look to freedom of expression principles to curb the expansion of trade mark rights and this suggestion is being taken increasingly seriously in other jurisdictions. While sharing concerns about the overreach of trade mark law, we express caution about the advisability of looking to freedom of expression to solve the problem. Specifically, we argue that this focus concedes too much in terms of the reach of trade mark law, is unlikely to prove effective (at least outside of the United States) and carries with it the danger that the relationship between trade marks and speech will become overly simplified.

Keywords: Trade marks, dilution, freedom of expression, speech, trade mark parodies

Suggested Citation

Burrell, Robert and Gangjee, Dev S., Trade Marks and Freedom of Expression: A Call for Caution (April 20, 2010). University of Queensland TC Beirne School of Law Research Paper No. 10-05, Available at SSRN: https://ssrn.com/abstract=1604886 or http://dx.doi.org/10.2139/ssrn.1604886

Robert Burrell (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

Dev S. Gangjee

Faculty of Law, University of Oxford ( email )

St Hilda's College
Cowley Place
Oxford, OX4 1DY
United Kingdom

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