To what extent does EU trademark law allow parody as a form of freedom of expression and are its limitations justified? A comparative analysis of parody across different legal regimes

Sammanfattning

The protection afforded to registered trademarks and the protection afforded to freedom of expression can lead to tension between the two rights, this tension originates from the shift of trademarks from being an identifier to that of a communicator. This shift has resulted in a protection that goes beyond likelihood of confusion, trademark functions have expanded from that of origin to now encompassing functions of communication, investment and advertising. This gives rise to important questions concerning how expressive uses like parody are treated within EU trademark law. Although EU trademark law does not contain an explicit parody limitation, parody may be accommodated through the current infringement thresholds developed by the Court of Justice of the European Union. This thesis, therefore, examines to what extent EU trademark law allows parody as a form of freedom of expression through its infringement thresholds, to evaluate whether the absence of an explicit parody limitation is justified. The methodology used in this thesis is the doctrinal research method in combination with a comparative analysis which is drawing on copyright law and freedom of expression in human rights. The analysis suggests that parody as a freedom of expression can be accommodated through the internal balancing approach utilized within the legal framework, pointing towards absence of an explicit parody limitation as a deliberate choice of the legislator. Parody can in particular be accommodated through use in the course of trade in relation to goods and services which acts as a condition for falling within the scope or outside the scope of trademark law, further through due cause which allows for a structured balancing mechanism. The thesis, therefore, concludes that the limitations imposed are justified in light of the objectives and structure of trademark law, however, highlights that due cause remains underdeveloped entailing further guidance is needed from the Court to enhance legal certainty.