Invoking Freedom of Expression and Freedom of Competition in Trade Mark Infringement Disputes: Legal Mechanisms for Striking a Balance
ERA Forum (2018). DOI:10.1007/s12027-018-0498-3
Posted: 25 Feb 2018 Last revised: 4 Mar 2018
Date Written: February 21, 2018
The article explores legal mechanisms for striking a balance of competing interests on the premise of freedom of expression and freedom of competition in the area of trade mark infringement. Special focus is given to the respective framework under the reformed EU trade mark law. The paper argues that the newly introduced references to fundamental rights and freedoms in the preambles of relevant acts should play a crucial role in interpreting and applying provisions of trade mark law at all stages of assessing an infringement action. As for specific issues, the paper, notably, discusses the potential for providing a balance of interests resting in the ‘due cause’ clause and the amended catalogue of limitations and exceptions, arguing in particular that the narrowing of the own name and address limitation to natural persons properly balances the interests at stake. Finally, the paper questions the inapplicability of national correction instruments to trade mark infringement matters, implied in the case law of the Court of Justice.
Keywords: Trade Marks, Trademarks, Freedom of Expression, Undistorted Competition, Own Name Limitation, Referential Use, Limitations and Exceptions, Due Cause
JEL Classification: K39
Suggested Citation: Suggested Citation