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[1]. 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.[2]

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,[3] 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 ideas.

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[4], 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[5]. Kosinski[6] 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 objectionable.

The 2017 decision Matal v. Tam[7] 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 statutory laws.

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 irrelevant.

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 turned 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 Ltd.[8], 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. [9]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 of defamation.

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,[10] 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 disrespect.

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 information.

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 [357] 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.

References:

1. Aplin, T., Davis, J.: Intellectual Property Law. Text, Cases and Materials, 3rd edn. Oxford University Press, Oxford (2017)
2. Cohen Jehoram, T.: The function theory in European trade mark law and the holistic approach of the CJEU. Trademark Report. 102, 1243 1253 (2012)
3. 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)
4. European Convention on Human Rights
5. Lanham Act, 15 U.S.C.  1051 et seq.
6. Handyside v UK (App no 5493/72) (1976)
7. Iancu v. Brunetti, 588 U.S.(2019)
8. Bently L ,Sherman B and others, Intellectual Property Law (Fifth Edn, OUP 2018)
9. Griffiths J, 'Is there a right to an immoral trade mark?' Intellectual Property and Human Rights, P Torremans, ed, Kluwer Law International (2008)
10. Smith A, 'Trade Mark Dilution- You Can't Laugh It Off" Juta's Business Law Vol 12 Issue 4 (2004)
11. Matal v. Tam, 582 U.S. 15 (2017)
12. Geiger, C.: Trade marks and freedom of expression-the proportionality of criticism. Int. Rev. Intellect. Prop. Compet. Law, 317 327 (2007)
13. Burrell, R., Gangjee, D.: Trade marks and freedom of expression-a call for caution. Int. Rev. Intellect. Prop. Compet. Law, 544-569 (2010)
14. 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
15. Wolfgang Sakulin, Trademark protection and freedom of expression (Kluwer Law International BV 2011) 122
16. Christophe Geiger and Leonardo Machado Pontes, 'Trade mark registration, public policy, morality and fundamental rights' (CEIPI Research Paper No 2017-01 2017).
17. Tanya Aplin and Jennifer Davis, Intellectual Property Law: Text, Cases, and Materials (Third Edn, OUP 2017)
18. Handyside v UK (App no 5493/72) (1976)
19. US Const. amend. I.
20. Alex Kozinski & Stuart Banner, Anti-History and Pre-History of Commercial Speech, 71 TEX. L. REV., 747 (1992).
21. Matal v. Tam, 582 U.S. 15 (2017)
22. (1995) 5 SCC 139.
23. 2011 (45) PTC 275 (Del). Hereinafter Greenpeace.
24. (2013) 1 SCC 729. Hereinafter Prakash Jha.