Conflicts Between Trade Mark Rights and Freedom of Expression Under EU Trade Mark Law: Reality or Illusion?
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Conflicts Between Trade Mark Rights and Freedom of Expression Under EU Trade Mark Law: Reality or Illusion? Michal Bohaczewski
Published online: 19 August 2020 The Author(s) 2020
Abstract The issue of reconciling trade mark rights and freedom of expression is a classic question discussed by European scholars which has recently been reopened because of the express reference to ‘‘fundamental rights and freedoms, and in particular the freedom of expression’’ in the preambles of Directive 2015/2436 and of Regulation 2017/1001. In this article, the author argues that, in the light of the EU legislation, conflicts between the freedom of expression and trade mark rights are often illusory. Indeed, in this debate we focus too quickly on the question of resolving a potential conflict, while EU trade mark law itself provides for limits that guarantee respect of the freedom of expression. It should also be borne in mind that commercial expressions enjoy a more restricted freedom since they serve private economic interests and not the interests of society as a whole. The freedom of commercial expression therefore needs to be limited by trade mark rights which are also fundamental rights, having equivalent value. Consequently, it seems unnecessary to envisage use related to the freedom of expression, of a sign reproducing or imitating a trade mark, as a specific limitation of trade mark rights, either in the speciality or in the field of enhanced protection of trade marks with a reputation. Keywords Trade mark Freedom of expression Reputation Due cause Trade mark limitations
M. Bohaczewski (&) Dr., Assistant Professor, Faculty of Law and Administration, University of Warsaw, Warsaw, Poland e-mail: [email protected]
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1 Introduction By their very nature, trade mark rights, which confer exclusivity of use of a sign on its proprietor, based on the concept of property rights to tangible objects, limit the freedom of trade and industry and the related freedom of competition of others. The monopoly resulting from registration1 is nevertheless relative. Trade mark rights do not confer exclusivity on the sign per se, but only in so far as it designates the goods or services concerned.2 In trade mark law, the freedom of trade and industry (freedom of competition) is reflected in the so-called principle of ‘‘speciality’’ which traditionally governs this area of law. In the light of this rule, the protection of a trade mark is restricted to the industry concerned. However, the scope of this protection is broader vis-a`-vis third parties who use similar signs in relation to similar goods or services. The rule of speciality is mitigated with respect to trade marks with a reputation which enjoy a special regime of protection, providing for specific conditions for trade mark infringement irrespective of the similarity of the goods or services concerned. A third party should not therefore use a trade mark if such use falls within the monopoly conferred on the
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