Free Speech and International Obligations to Protect Trademarks
63 Pages Posted: 17 Oct 2010 Last revised: 20 Jan 2011
Date Written: October 15, 2010
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.
Keywords: Trademark, International, Paris Convention, TRIPS, Free Speech, Freedom of Expression, Human Rights
JEL Classification: K33, K0
Suggested Citation: Suggested Citation