Copyright And Trade Mark Laws Have An Ambiguous Relationship With The
Right To Freedom Of Expression. If There Is A Clash Between Intellectual
Property Rights On The One Hand, And The Right To Freedom
The relationship between the right to free expression and intellectual property
legislation is complicated. The right to freedom of speech should take
precedence when there is a conflict between intellectual property rights and one
of those rights.
The general phrase "intellectual property" was perhaps first used frequently in
the twentieth century. This general term refers to a collection of legal
systems, all of which, in varying degrees, grant ownership rights in the
specific subject matter. Intellectual property's traditional core consists of
copyright, patents, designs, trademarks, and protection from unfair competition.
These rights cover a variety of different subjects. A distinguishing feature of
intellectual property is the ever-expanding scope of the subject, despite its
early historical connection with the concept of monopoly and privilege.
In addition to promoting freedom of expression, laws protecting intellectual
property, such as patents, copyrights, and trademarks, can seriously jeopardise
civil liberties. For instance, the power to stop books you write or photos you
take from being reproduced and sold without your consent gives a financial
incentive to write those books or take those photos, increasing creativity and
promoting expression. Likewise, the over-application of copyright law - the
right to copy material - prevents people from expressing themselves freely.
Information is increasingly becoming "the primary resource in today's economy."
The possession and ownership of genetic information have become a significant
component, influencing how that industry is structured, even in sectors that
appear to be unrelated to information, like agriculture. Information has
replaced other resources as the primary resource. As a result, the exploitation
of information through the exercise of intellectual property rights has an
impact on interests that are the focus of human rights complaints.
By their very nature, property rights give the owners the ability to bar others
from using a valuable resource, frequently resulting in rights conflict. To put
it more bluntly, the conflict between Intellectual Property Laws and freedom of
expression is caused by property in expression.
As a result, I will first examine the scope and concepts of trademark and free
expression; second, I will highlight the existing dispute between the two
rights; and finally, I will ascertain why freedom of expression should prevail
when there is a conflict between the two rights.
Freedom of expression and trademarks appear to be uneasy, like water and oil in
the legal world. Lawyers who rely on legal certainty and contracts are terrified
of the "constitutionalizing" of private law. The direct involvement of general
principles, as well as the uncertainty associated with their interpretation in
interpretation of EU norms, resulted in some potentially significant changes.
Even though trademark law already includes exclusions intended to strike a fair
balance, third parties can avoid unfair consequences by interpreting the law in
the context of fundamental freedoms.
The growing importance of this issue has been attributed to the apparent need to
strike a balance between the interests of trademark owners whose rights are not
adequately protected and other competing interests, such as those of market
competitors who want to avoid unnecessary market entry barriers, those of
consumers of goods and services who want to be protected from unfair
competition, and interests of other stakeholders.
Regarding trademarks with a reputation that enjoys a special regime of
protection, which provides for specific conditions for trademark infringement
regardless of the similarity of the goods or services concerned, the rule of
specialty is mitigated. Therefore, if using a trademark would violate the
owner's monopoly, it should not be done.
There is no question, however, that such restrictions on the freedom of commerce
and industry are justifiable because trademark rights are also essential for all
businesses to conduct their economic activity. Trademarks encourage their owners
to invest in the quality of their goods or services to satisfy the consumer,
ensuring the market's proper operation and enabling advancement. Thus, trademark
rights safeguard the sign to the extent that their reservation results in a
necessary and legitimate restriction of the freedom of commerce and industry
(freedom of competition).
A conflict could arise between the freedom of expression of others who want to
use a registered mark and the trademark owner's, within specific parameters,
monopoly over the use of its sign. This has to do with uses made for public
access to information and artistic expression. The so-called "trademark parody"
seems to be the most divisive issue in the struggle between trademark rights and
freedom of expression.
Many European countries' jurisprudence and case law have long voiced concern
about the question of whether a trademark user can avoid punishment for
trademark infringement simply because their usage is ironic or critical,
depending on the First Amendment. Since one of the basic privileges protected by
the Constitution is the right to free speech, many authors fervently contend
that utilising someone else's trademark while expressing one's right to free
expression is a valid defence that the alleged infringer may raise. These
writers are frequently motivated by copyright laws or American trademark law.
Freedom of expression is a fundamental human right protected by international
law. It allows individuals to freely express their thoughts, opinions, and ideas
without fear of censorship or punishment. This right is essential for democracy,
as it allows people to participate in the political process and hold governments
accountable. It also plays a vital role in the exchange of ideas and the
promotion of creativity and innovation.
Trademark laws, on the other hand, are a type of intellectual property law that
seek to protect the unique and distinctive signs, symbols, and designs that
identify and distinguish a particular business or product. These laws help
prevent confusion among consumers and protect the investment businesses make in
their brands. While trademark laws are essential for ensuring fair competition
and protecting the rights of businesses, they should not be allowed to limit
freedom of expression.
Sometimes, there may be a conflict between freedom of expression and trademark
law. For example, an artist may want to use a trademarked image or phrase in
their work but doing so could infringe on the trademark owner's rights. In such
cases, it is essential to balance the competing interests of freedom of
expression and intellectual property protection. Ultimately, the right to
freedom of expression is generally considered more important, as it is a
fundamental human right that serves a vital role in democracy and promoting
The right to free speech restricts trademark owners' power to enforce
exclusivity in ways detrimental to public discourse, fair competition, and
cultural advancement. It is especially pertinent when noncommercial use is
involved because criticism is a crucial catalyst for innovation. In
Handyside, the ECHR affirmed that article 10 (2) applies to "information" and
"ideas" that are not just well-received or viewed as neutral or unimportant but
also to those that shock or upend the State or any segment of the population.
These are the requirements of plurality, tolerance, and open-mindedness for a
"democratic society" to exist. This means, among other things, that any "form,"
"condition," "restriction," or "penalty" imposed in this area must be
proportionate to the legitimate aim pursued. Allowing public discussion and
criticism of trademarks or their owners is an integral part of democracy.
Therefore, the legislators should somehow regulate trademarks, it is not an
insult, and it is protecting free speech.
In addition to appreciating the value of free speech in a democracy, one must
also appreciate it in the commercial expression of others, whether or not they
are rivals. When trademarks are used by a third party in comparison advertising,
as part of a product's description, or as a reference to another product or
service, the intent is typically solely commercial. Some contend that commercial
expressions should not be protected because they lack the compelling
justifications for free speech protection. Consumer protection is one of the
main goals. Due to the fact that information is power, allowing for references,
descriptions, and comparative advertising will increase consumer awareness and
empower them to make informed purchasing decisions.
Whether commercial or not, free speech has historically been of utmost
significance in the USA as guaranteed by the First Amendment. Kosinski and
Banner claimed that there should not be a distinction between commercial and
noncommercial expression because all forms of speech have similar values and
should be protected as such. The Supreme Court agreed that solely commercial
speech should be protected, concluding that it is in the public interest for
consumers' decisions to be, overall, wise, and well-informed. The open exchange
of business information is crucial for achieving this goal.
Section 2 of the Lanham Act previously prohibited the registration of scandalous
or immoral trademarks. The usage of the word marks Madonna40, Khoran41 for wine,
or Jack-off42 for adult phone conversations were examples of derogatory or
filthy word marks that were grounds for refusal of registration. Given the value
placed on free speech by US courts when weighing the First Amendment against
section 2 of the Lanham Act, judgments would often only result in a refusal of
registration in scarce circumstances, the majority of which are immoral or
The 2017 decision Matal v. Tam
 upheld the Federal Circuit, which held
that a ban on defamatory trademarks was unconstitutional. Here, the Supreme
Court did not clarify whether a trademark is a commercial speech or more; it
emphasized that commercial speech can be partly political or artistic at the
same time, and therefore less protection for these side cases would ultimately
threaten freedom of speech.
According to Christopher Geiger and Leonardo Machado Pontes, the distinction
between commercial and noncommercial speech becomes important when opinion-based
restrictions on speech are threatened because of the heightened constitutional
protections in this case. In June 2019, the US Supreme Court declared that the
Lanham Act's ban on scandalous or immoral trademarks violated the First
Amendment, eliminating these reasons for denial of registration from its
The scandalous and immoral registration hurdles were declared to be a
content-based restriction on free speech by the Federal Circuit. Based on the
subject being covered, the thought being communicated, or the message being
sent, certain sections forbid the registration of particular words or images.
The gap between this development and typical EU court positions, which, as per
the ruling in La Mafia v. EUIPO
, tend to balance the interests at stake
with freedom of expression, has widened. This development removed nearly all
meaningful restrictions on freedom of expression in trademark registration.
In contrast to the EU's approach, the US Supreme Court not only did not
recognize trademarks as a form of commercial expression, but it also stated that
viewpoint discrimination must be subjected to rigorous constitutional scrutiny,
rendering the distinction between commercial and noncommercial speech
Though US courts have traditionally had more liberal outcomes in their
proportionality tests between a trademark and free speech than the EU, the basic
principles and exceptions were essentially the same if the commercial
expressions were not misleading. Matal v Tam and Iancu v Brunetti
this convergence into a divergence. According to Lisa Ramsey, per Aplin and
Davis and Griffiths, denial of registration is not such a restriction that it
suppresses the use of a trademark.
While it may demotivate its use, people are still free to market whatever
trademark they deem acceptable or desirable without it being registered. This is
especially true in the United States, where trademark owners' rights emerge from
using the trademark (first use doctrine). Thus, trademark protection in the
United States equals registered and unregistered trademarks.
Thanks to the internet and technology, consumers are considerably more aware
than they ever were, and they can readily reject a brand through boycotts or bad
publicity. As more people attempt to become socially conscious and aware, this
practise is spreading more widely. However, if a trademark is inappropriate or
offensive, governments, in particular the trademark office should have the right
to refuse it. Given that a trademark is protected whether it is registered or
not, granting public authorities the ability to judge whether a trademark
violates local morals should be within the purview of such authorities' rights.
Fundamental rights are the Indian Constitution's basic structure and soul.
Indian courts have repeatedly protected fundamental rights and issued numerous
judgments opposing attempts by parliament to amend fundamental rights. The
"Right to Freedom" is a fundamental right guaranteed by Article 19 of the Indian
Constitution. With the rise of judicial activism in India, this right has grown
in importance, and the Court has liberally interpreted the right to freedom,
giving it a whole new meaning.
The right to free speech and expression is one of the many rights guaranteed by
Article 19. According to Article 19(1)(a), all citizens have the right to free
speech and expression.
Only Indian citizens have access to this right; alien nationals do not. This
right is not unrestricted, though, and the government is permitted to pass laws
that impose reasonable limitations in the interests of Indian sovereignty and
integrity, state security, friendly relations with other nations, public order,
decency, and morality, as well as contempt of court, defamation, and incitement
to commit an offence.
'Expression' encompasses both the imparting of information (expressing oneself)
and access to information - the concept of being able to seek and receive
information. The expression can be written or printed, but it does not have to
be verbal; it can also be graphic or pictorial, or it can take the form of
banners or simple symbolic speech, such as hand gestures or silent protests.
Two sorts of trademark usage by a third party (referred to as "the mark user")
raise free speech issues. The first instance is when the mark is used as a
denominator in a parody or critical work, and the second is when the mark is
used in comparison advertising, which compares the mark owner's product with the
product of the mark user. In the first instance, the mark user's actions fall
under the traditional definition of speech protected by Article
19(1)(a)-political or social commentary. In the second instance, the mark user
is typically a business looking to gain an advantage over the mark owner.
The Supreme Court's ruling in Tata Press Ltd. v. Mahanagar Telephone Nigam
., in which the Court explored whether the right to free expression
should include commercial speech. The Mahanagar Telephone Nigam Limited and the
Union of India filed a civil lawsuit against Tata Press Limited, asserting that
only they alone have the authority to print and publish the list of telephone
subscribers under the Indian Telegraph Act and that Tata Press Limited lacks
this authority. They also demanded that Tata Press Limited be prohibited from
publishing "yellow pages" in the future.
According to the Supreme Court, commercial speech, which includes
advertisements, is protected by Article 19(1) (a) of the Indian Constitution and
is subject to the reasonable limitations laid out in that provision (2). Article
19(2) states that in the interest of the nation's sovereignty and integrity, its
security, friendly relations with other states, maintaining public order,
decency, morality, defamation, and incitement of offense, citizens' rights under
Article 19 can be limited.
The government has the authority to regulate and monitor commercial
advertisements that are deceptive, unfair, untruthful, or misleading to ensure
that advertisements with the power to spread information and awareness do not
disrupt public order and peace. According to the Supreme Court of India, Tata
Press Limited lacks the right to obstruct the publication and distribution of
"Yellow Pages" by Mahanagar Telephone Nigam Limited and the Indian government.
According to the article, the public gains from advertising' knowledge-sharing.
The Court ruled that as our nation has a democratic economy, the free flow of
commercial information ought to be required in order for citizens to make
educated and logical decisions when deciding whether to buy any good or service.
However, the general population should be educated through the information
broadcast through commercials in order to make such knowledgeable and economical
selections. Additionally, the public now has the right to hear "Commercial
Speech" due to economic changes. Without "Commercial Speech Freedom," the
economic system that works in a democracy will collapse and become paralyzed.
The first situation was presented before the Delhi High Court in Tata Sons
Ltd. v. Greenpeace International.
The question, in this case, was whether
the defendant violated a trademark by posting a game online with the title
"Turtle v. TATA." When weighing free speech and intellectual property rights,
the Court determined that several criteria favor free expression and that such
temporary injunctions should not be granted in cases where there is no evidence
In this context, it was essential to determine whether the defendant's action
was principally communicative or commercial. Therefore, the presence of some
businesses would not automatically disqualify an activity from the protection of
free expression. It follows that social critique alone would not defend an
intrinsically commercial activity against accusations of unfairly harming
others. Similarly, it would not be essential or even determinative if the
message had been communicated without using parody.
The greater the degree to which the trademark served as both the target and the
instrument, the more justifiable its inclusion in a parody would be. In
contrast, the more the trademark was used arbitrarily and simply as an
attention-seeking device for the lazy or deceitful, the less justifiable it
became. The medium used and the context in which it was used were two other
relevant factors articulated by the Constitutional Court.
Thus, illustrations in satirical columns, editorial cartoons in newspapers or
magazines, or satirical television programs were likely well-protected. In
another context, the same images could be considered unfair. The defendants
attempted to express their concern and disapproval of the project and its
perceived damage to the turtles' environment through the game medium and in
characterizing the Tatas as possessing demonic qualities; they were hyperbolic
and parodic. Thus, in the context of trademark parodies, the Court prioritized
the public's right to free speech over the mark owner's private interests.
In a more recent case involving a conflict between these interests, the Supreme
Court of India issued an order that resulted in a relatively simple compromise.
In Bata India Ltd. v. Prakash Jha Productions
, a song in a movie with
Naxalism as its main topic that was produced by the defendant's company
contained derogatory comments against the plaintiff, a well-known shoe
manufacturer, and other industrial establishments.
The purpose of the allusion was to cast doubt on the capitalist development
paradigm that these bellwethers had come to stand for. In the plaintiff's
lawsuit asking the Supreme Court to stop the defendant from playing this music,
the court made an interesting interim ruling ordering the defendant to play the
song with the accompanying disclaimer: The names mentioned in the song are just
illustrative. No specific person or brand is intended to be offended or shown
In the case of Horlicks Ltd. v. Heinz India Private Limited
, the Delhi
High Court denied a request for an injunction because advertisements are a type
of commercial speech covered by Article 19(1)(a) of the Constitution and that
the information they contain is a crucial part of the public's right to
To prevent the defendant Heinz India Private Limited from running a newspaper ad
that said the defendant's health drink contained twice as much protein as the
plaintiff's health drink, the plaintiff Horlicks Limited filed a lawsuit against
the defendant. The Court determined that the advertisement was just comparative
and did not infringe upon the plaintiff's trademark since it did not distort
competition or deceive the public.
Human rights and trademark law do not blend smoothly. This is partly a result of
educational traditions and the division of legal studies into public law,
international law, and human rights law on the one hand and private and business
law on the other. However, human rights concerns are becoming increasingly
crucial in trademark law, an area of intellectual property law that seems less
significant than copyright.
This evolution results from the potential of the property right the trademark
grants expanding-possibly unreasonable. Trademark rights are impacting more
facets of human activity, and human rights constrain these commercial interests.
The  courts in Europe and the US have been open to considering freedom of
expression, especially in trademark infringement cases where a trademark has
been ridiculed or exploited for critical purposes. However, they have remained
cautious when addressing human rights in general in a business situation.
The situation for human rights could be better. Due to the absence of an
effective enforcement mechanism under the relevant international human rights
agreements, the human rights guaranteed in these accords often need practical
consequences in most business or trademark concerns.
For a commercial lawyer, this frequently translates into the capacity to dismiss
international human rights as meaningless chitchat, which is typically the case.
An interventionist human rights regime would necessitate a different enforcement
framework, including a type of constitutional Court, which is an unlikely
scenario at the international level in any case.
Commercial law recognizing fundamental human rights and enforcing them within
its framework would be a more effective course of action, with the human right
setting the parameters of an individual's claim rather than the commercial law's
framework. This would also deal with the problem of the human rights system's
general lack of effectiveness.
Then, international human rights law might be affected. Otherwise, they would
remain what they are today: a method for students to kill time while they wait
for a well-paying career in the business sector, a way for bored pop stars to
"give something back to society" other than their wealth, and a way for retired
politicians to make after-dinner speeches.
- Aplin, T., Davis, J.: Intellectual Property Law. Text, Cases and
Materials, 3rd edn. Oxford University Press, Oxford (2017)
- Cohen Jehoram, T.: The function theory in European trade mark law and
the holistic approach of the CJEU. Trademark Report. 102, 1243 1253 (2012)
- Ramsey, L.P., Schovsbo, J.: Mechanisms for limiting trade mark rights to
further competition and free speech. Int. Rev. Intellect. Prop. Compet. Law,
671 700 (2013)
- European Convention on Human Rights
- Lanham Act, 15 U.S.C. 1051 et seq.
- Handyside v UK (App no 5493/72) (1976)
- Iancu v. Brunetti, 588 U.S.(2019)
- Bently L ,Sherman B and others, Intellectual Property Law (Fifth Edn,
- Griffiths J, 'Is there a right to an immoral trade mark?' Intellectual
Property and Human Rights, P Torremans, ed, Kluwer Law International (2008)
- Smith A, 'Trade Mark Dilution- You Can't Laugh It Off" Juta's Business
Law Vol 12 Issue 4 (2004)
- Matal v. Tam, 582 U.S. 15 (2017)
- Geiger, C.: Trade marks and freedom of expression-the proportionality of
criticism. Int. Rev. Intellect. Prop. Compet. Law, 317 327 (2007)
- Burrell, R., Gangjee, D.: Trade marks and freedom of expression-a call
for caution. Int. Rev. Intellect. Prop. Compet. Law, 544-569 (2010)
- Pankhuri Agarwal, Revisiting the Free Speech, Morality and Trademark Law
Debate (Part I), SpicyIP, !7-10-19 13:49, https://spicyip.com/2019/09/spicyip-fellowship-2019-20-fuct-the-uspto-revisiting-free-speech-under-trademark-law-part-i.html
- Wolfgang Sakulin, Trademark protection and freedom of expression (Kluwer
Law International BV 2011) 122
- Christophe Geiger and Leonardo Machado Pontes, 'Trade mark registration,
public policy, morality and fundamental rights' (CEIPI Research Paper No
- Tanya Aplin and Jennifer Davis, Intellectual Property Law: Text, Cases,
and Materials (Third Edn, OUP 2017)
- Handyside v UK (App no 5493/72) (1976)
- US Const. amend. I.
- Alex Kozinski & Stuart Banner, Anti-History and Pre-History of
Commercial Speech, 71 TEX. L. REV., 747 (1992).
- Matal v. Tam, 582 U.S. 15 (2017)
- (1995) 5 SCC 139.
- 2011 (45) PTC 275 (Del). Hereinafter Greenpeace.
- (2013) 1 SCC 729. Hereinafter Prakash Jha.
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