Mechanisms for Limiting Trade Mark Rights to Further Competition and Free Speech

International Review of Intellectual Property and Competition Law, Volume 44, Issue 6, pp. 671-700, 2013

30 Pages Posted: 18 Jun 2015 Last revised: 19 Jun 2015

Lisa P. Ramsey

University of San Diego School of Law

Jens Schovsbo

Centre for Information and Innovation Law (CIIR)

Date Written: September 3, 2013

Abstract

This article evaluates the different mechanisms that nations use to limit trade mark rights to promote competition, free speech, and other public interests. It shows how EU and US trade mark laws seem to be converging towards a similar model which includes both (1) specific statutory defenses to trade mark violations and (2) trade mark doctrines which give courts flexibility to permit unauthorized uses of marks that further the legitimate interests of the accused infringer and the public. Such a development should be welcomed and the article urges other nations to consider adopting one or both of these mechanisms for limiting trade mark rights to better protect the public interest in trade mark disputes. Finally, a proposal for reform is suggested. It consists of three parts: (1) domestic legislatures should revise their trade mark statutes to add more mandatory and specific limitations on trade mark rights that courts must apply in trade mark disputes, (2) legislatures should also enact permissive statutory provisions that give courts discretion to further limit trade mark rights and allow socially beneficial uses of marks that are not covered by the statutory limitations, and (3) legislators should explain clearly what are the exact functions of a trade mark worth protecting, the goals of trade mark law, and/or the public interests that may be relevant when courts resolve trade mark disputes.

Keywords: trade mark, trademark, free speech, free expression, fundamental rights, competition, public interest

JEL Classification: O34

Suggested Citation

Ramsey, Lisa P. and Schovsbo, Jens, Mechanisms for Limiting Trade Mark Rights to Further Competition and Free Speech (September 3, 2013). International Review of Intellectual Property and Competition Law, Volume 44, Issue 6, pp. 671-700, 2013. Available at SSRN: https://ssrn.com/abstract=2619436

Lisa P. Ramsey (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

Jens Schovsbo

Centre for Information and Innovation Law (CIIR) ( email )

University of Copenhagen
Karen Blixens Plads 16
Copenhagen, 2300
Denmark

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