Free Speech and International Obligations To Protect Trademarks

Abstract

The Paris Convention for the Protection of Industrial Property (Paris Convention) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) obligate parties to the Paris Convention and members of the World Trade Organization (WTO) to provide minimum standards of protection for trademarks, among other things. For example, members must protect distinctive trademarks against certain unauthorized uses "in the course of trade" that "would result in a likelihood of confusion." Yet many states also have obligations under their constitutions or human rights treaties to protect the right to freedom of expression. States shield speech ranging from political discourse to entertainment and even commercial advertising from government restriction because freedom of expression is essential in a democratic society and a robust marketplace of ideas promotes the discovery of truth. National trademark laws are government regulations of speech that implicate the right to freedom of expression and are permissible under constitutional or international law only if the speech is categorically unprotected (like misleading commercial speech in the United States) or if the government can justify this regulation of speech under applicable legal standards.