Trademarks and free speech


IP rights are expanding via constitutional jurisprudence, but at the same time, human rights, particularly freedom of expression, are being used to trump them, says Gunjan Chauhan.

Trademarks have taken on new roles in recent years. No longer restricted to identifying the source of goods and services, they act as navigation tools on the Internet and as metaphors in common parlance, they feature in lyrical compositions, they are icons of style and culture, and sometimes objects of parody, and are often subject to critical comparison in advertising.

In fact, the function of identification has almost been overtaken by that of appeal and selling power. A corresponding change in the nature of legal protection for trademarks is only natural. To this end, old remedies—infringement and passingoff— have been combined with new—dilution, initial interest and post-sale confusion—to equip proprietors with stronger and broader safeguards.

However, enhanced levels of protection have, in turn, raised the possibility of the potential overreach of trademark laws. It is precisely here that the relationship between trademarks and expressive freedom comes into the picture, a relationship that has been characterised by much unease and confrontation.

Trademarks, free speech, parody, advertising, infringement