Conflicts Between Trade Mark Rights and Freedom of Expression Under EU Trade Mark Law: Reality or Illusion?

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.