Abstract

http://ssrn.com/abstract=1692954
 
 

Footnotes (3)



 


 



Free Speech and International Obligations to Protect Trademarks


Lisa P. Ramsey


University of San Diego School of Law

October 15, 2010

Yale Journal of International Law, Vol. 35, No. 405, 2010
San Diego Legal Studies Paper No. 10-040

Abstract:     
There is an increasing global recognition that certain trademark laws may harm the free flow of information and ideas. Yet if a state reduces trademark rights to protect speech interests, this may raise concerns regarding that country’s compliance with its international obligations to protect trademarks. This Article argues that the trademark provisions of the Paris Convention for the Protection of Industrial Property (Paris Convention) and Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) contain sufficient flexibility to allow member states to protect expression in their domestic trademark laws. If a state’s speech-protective trademark laws are challenged before the World Trade Organization as violating the Paris Convention or TRIPS, WTO panels and the Appellate Body should narrowly interpret ambiguous international obligations to protect trademarks and avoid an activist interpretation of the provisions that adopts a particular solution to any conflict between trademark and free speech rights. To better protect speech interests in international trademark law, member states could amend the Paris Convention or TRIPS to explicitly require states to protect “the right to freedom of expression” when implementing their trademark obligations. States could also add specific permissive or mandatory exemptions for certain uses of a mark to the international trademark laws. This Article concludes that states should instead adopt speech-friendly trademark laws at the national level, evaluate whether these domestic laws properly balance trademark and free speech rights, and not pursue international reform until more states recognize that certain trademark laws can harm the right to freedom of expression.

Number of Pages in PDF File: 63

Keywords: Trademark, International, Paris Convention, TRIPS, Free Speech, Freedom of Expression, Human Rights

JEL Classification: K33, K0

Accepted Paper Series





Download This Paper

Date posted: October 17, 2010 ; Last revised: January 20, 2011

Suggested Citation

Ramsey, Lisa P., Free Speech and International Obligations to Protect Trademarks (October 15, 2010). Yale Journal of International Law, Vol. 35, No. 405, 2010; San Diego Legal Studies Paper No. 10-040. Available at SSRN: http://ssrn.com/abstract=1692954

Contact Information

Lisa P. Ramsey (Contact Author)
University of San Diego School of Law ( email )
5998 Alcala Park
San Diego, CA 92110-2492
United States
Feedback to SSRN


Paper statistics
Abstract Views: 1,033
Downloads: 179
Download Rank: 101,386
Footnotes:  3
Paper comments
No comments have been made on this paper

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo6 in 0.406 seconds