Allegro without Vivaldi: Trademark Protection, Freedom of Speech, and Constitutional Balancing
29 Pages Posted: 6 Feb 2012
Date Written: February 2, 2012
The cases of deliberate trademark deformation in order to make a critical comment on public issues, especially when related to the trademark owner or the trademark itself, illustrate a conflict between two types of prima facie legitimate claims: claims based on fundamental values of freedom of speech and claims based on the values underlying a category of intellectual property, namely trademarks. On a substantive level, this paper argues that in the conflicts of values illustrated by trademark deformation or parody, the interests in freedom of speech should prevail, both because the speech in question belongs to the highest tier of constitutionally protected speech, and because the fundamental rationale for having trademarks protected in the first place is not engaged in such cases: there is no risk that such a misuse of trademark will confuse the potential customers as to the origins of the product. While there may be some other ancillary rationales for trademark protection – a protection against the “dilution” of the trademark resulting in the decrease of its economic value – they are not seriously engaged by trademark parody either. On a methodological level, this paper is a case study in constitutional balancing. It demonstrates that the “balancing” approach (weighing and balancing of competing rights viewed through their strength) is superior to a “categorical” approach (delimiting the boundaries between rights viewed through their scope). The balancing approach is more faithful to our intuitive views about conflicts of values in social practice than the categorical approach which may be seen as trying to define the real conflicts out of existence. It also better makes sense of case law in a number of legal systems where courts in such cases as discussed in this paper weighed and balanced the interests of freedom of speech against the interests protected by trademark ownership.
Keywords: Freedom of speech, Freedom of expression, European Convention of Human Rights, Intellectual Property, Trademark protection, Trademark dilution, Constitutional balancing, Constitutional rights
JEL Classification: K10, K30
Suggested Citation: Suggested Citation