Michael Spence At Ucl Merchandise Marks Equally Property/Trade Marks Equally Expression

On Th the IPKat paid a take in to University College London to listen Michael Spence of the University of Oxford deliver i of the lectures inwards the Current Legal Problems series. Chaired past times Lord Justice Jacob as well as speaking nether the championship “The Mark equally Expression/The Mark equally Property”, Dr Spence argued that liberty of appear could genuinely move used to justify greater protection for merchandise marks.

While justifications for merchandise marks accept vacillated from the initiative off betwixt marks equally appear as well as marks equally property, the improve justification rests on expression. Moreover, fifty-fifty though the broadened protection for merchandise marks inwards the course of written report of absolute protection nether s.10(1) of the Trade Marks Act 1994 as well as protection against dilution nether s.10(3), may expect similar they are making merchandise score rights to a greater extent than similar belongings rights, it tin move improve justified past times reference to costless speech. This stance is drawn past times reference primarily to a the US costless spoken language doctrine. The stance is that people (both natural as well as legal) could move able to command their ain spoken language equally constituent of their personal autonomy as well as should non move forced to limited a message that they disagree with. For example, a the US dilution instance was brought inwards the past times past the Girl Scouts of America, when their motto “Be Prepared” was used on a poster featuring a meaning Girl Scout. Allowing the makers of the posters to role the Girl Scouts’ indicia would strength the Girl Scout organisation to participate inwards the debate over teenage pregnancies as well as would “recode” the Girl Scout indicia as well as thence that it would communicate a dissimilar message to consumers.

Of course, it would remove to move ensured that sufficiently broad defences were available when it was correct to compel a mark-owner to accept his score larn inwards into debate, particularly: (1) when the role of the score was to comment on the goods of the score possessor himself, on the score itself or on the mark-owner as well as (2) where the score has popular off such a cultural icon that at that topographic point is no substitute for the score available on the market.


Michael Spence

enjoyed this thought-provoking lecture. However, he’s non certain whether it’s correct to role the US costless spoken language doctrine inwards the real dissimilar context of European Union merchandise score law. Trade score police clitoris inwards the European Union has a real specific background, since it grew upward inwards the context of the rule of on the internal market. What is recognised equally a merchandise score inwards the European Union is a number of the ECJ’s conclusion to inflict the to the lowest degree harm possible on the expanse of costless contest past times exclusively recognising the essential constituent of a merchandise score equally the legitimate reach of its protection. It is this essential constituent of a merchandise mark, rather than doctrines of costless speech, that should move the starting betoken of agreement as well as justifying European Union merchandise score law.

Strange expressions here, here as well as here