Jens Schovsbo


This Article analyses the new provisions in EU law that trademark rules should be “applied in a way that ensures full respect for fundamental rights and freedoms, and in particular the freedom of expression.” It is pointed out how these provisions are part of a broader trend of “constitiutionalization” in EU law whereby courts increasingly rely on fundamental rights when they interpret the rules of Intellectual Property Rights (IPR). After a presentation of the historical and legislative background for the changes and the related development in copyright law, the likely impact of the new trademark rules is discussed. It is concluded that even though the constitutionalization is not going to revolutionize EU trademark law, it will require courts to consider in a more pronounced way the interests of users of trademarks (such as artists or commercial users) vis-à-vis trademark holders’ interests. This in turn may affect the way courts interpret trademark law, and, in particular, give more room to the limitations and exceptions. The effects of such a development may be to limit the ability of trademark holders to push exclusivity in ways that harm cultural development, public debate, and fair competition.



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