On The Conflicts And Balance Between Trademarks And Freedom Of Expression

The conflicts of trademark rights and freedom of speech could be illustrated through freedom of speech and trademark rights respectively. As for the principles and case law of freedom of speech, it is also divided into two sub branch of commercial and noncommercial speech by its content and affords varying levels of protection. Although this division is questioned by some researchers, it still exists objectively. What is more, trademark is not an outstanding factor in the process of jurisprudence of freedom of speech. Then, such jurisprudence also does not develop specific defenses against trademark rights. These two reasons lead to the result that freedom of speech cannot get full protection.Trademark rights are also an angle through which we illustrate the question of conflicts. Trademark rights, specially speaking their expansions are the main reasons of conflicts. The broadened scope of illusion theory and the coming out of theory of dilution prove the process of expansion. The expansion mainly means the right holder can prohibit trademark use by third parties in a larger scope. Then, the political, economic and cultural dimensions of trademark and its right holder make the trade mark an important tool of speech. The political, economic and cultural phenomena are not absolutely the scope of trademark rights without questions. However the right holder insists that such should be prohibited. Such opinions are the ultimate reason of conflicts.As for the balance of trademark rights and freedom of speech, this paper illustrates the principles and its shortcomings developed in judicial practices in EU and the US respectively. Due to different legal traditions, EU and the US develop their respect jurisprudences though those jurisprudences are alike generally. Trademark rights and freedom of speech are main drives in these two different jurisprudences respectively. In the end of this paper, the author makes an analysis of the questions that exist in the trademark law and judicial practices in china. The main question of trademark law is that the supreme court of china introduces dilution factors into the illusion theory. Due to this defect, the courts apply the so called dilution theory in cases arbitrarily. This paper makes some suggestions for the trademark law and judicial practices according to the jurisprudences in EU and the US.