Trademarks @ Social Media – Enforcement of rights and impact on freedom of expression

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http://urn.fi/URN:NBN:fi:hulib-201602041122
Title: Trademarks @ Social Media – Enforcement of rights and impact on freedom of expression
Author: Heine, Pauliina
Contributor: University of Helsinki, Faculty of Law
Thesis level: master's thesis
Abstract: The enforcement of trademark rights in digital platforms constitutes a topical issue in European trademark law. The advent of social media has created a multitude of new ways in which trademarks can be used and abused. This, in turn, is putting pressure on the traditional conceptions of trademark law. For brand owners, the social media has created increased marketing opportunities. However, it is also used by third parties for various expressive purposes involving trademarks, including brand-related discussion and criticism, fan sites and trademark parodies. The social media has given the consumers a louder voice and thus considerable power over brand value. The consumers are now active participants in the process of brand creation. This increases the risk that the private interests of the trademark owners may conflict with the public interest related to freedom of expression. This thesis analyses these competing interests in an attempt to answer the following questions: Does the current legislative situation adequately address the problems relating to the enforcement of trademark rights in the social media? Does it allow enough room for freedom of speech? And, finally, are there any ways in which the situation could be improved if necessary? Both freedom of expression and the right to property, including intellectual property, are generally recognized as human rights. While freedom of expression is protected by Article 10 of the European Human Rights Convention, among other human rights instruments, the right to property is guaranteed under Article 1(1) of Protocol No. 1 of the Convention. While there is no hierarchy between human rights through which possible conflicts could be solved in an ‘automatic’ fashion, civil and political rights have often been given more weight than economic, social and cultural rights. As demonstrated by the case law of the European Court of Human Rights, the protection awarded for commercial communication is often weaker than for other types of communication. In the social media the line between commercial and non-commercial speech, and between private and public use, often becomes blurred. There is a clear risk that the trademark rights will unduly interfere with freedom of expression, especially with regard to the wide protection that “marks with reputation” currently enjoy under European trademark law. Even though trademark rights are in practice imitated for instance by the requirements of the use having taken place “in the course of trade” and as well as having been “use as a trademark”, such established principles are not always easily applied to the new types of uses taking place in social media. As the case law of the European Court of Justice concerning the protected ‘trademark functions’ seems to be lacking in clarity, the scope of protection of trademarks rights currently remains insufficiently defined to allow third parties to determine the limits of acceptable use with any certainty. Especially the outer edges of trademark protection would benefit from a more detailed scope of application, in which sufficient room was allowed for various expressive purposes involving trademarks. Also the protection of the brand owners rights in social media leave room for development. Even though the use of trademarks for instance as social media usernames or in hashtags is now commonplace, trademark proprietors are on many instances unable to determine whether their right extends to such uses. Additional factors complicating the enforcement of trademark rights in social media difficult include the risk of consumer backlash and negative publicity, the possibly unknown identity of the infringer and the length and uncertainty of the litigation process. Furthermore, even in successful complaints the amount of damages awarded may be relatively low, as especially the quantum of goodwill damage is often difficult to determine. To compensate for wider protection now awarded for famous trademarks, the present thesis calls for an increased tolerance for expressive, informational and even some commercial uses of trademarks in social media. In the absence of an explicit limitation in trademark law concerning expressive uses of trademarks, further definition could be provided by clarifying the definitions of “taking unfair advantage” and the use having been “without due cause”. Simultaneously, in order to protect the trademark proprietors’ legitimate interests, the scope of application of trademark law in the new digital environments needs to be more clearly defined especially insofar as the new types of trademark uses (such as trademarks in usernames and hashtags) are concerned. For ensuring the effective enforcement of trademark rights, also the mobilization of and co-operation with the social media sites themselves is to be endorsed. The most prominent sites such as Facebook and Twitter already have trademark policies in place, but these leave room for improvement for instance with respect to clarity and transparency. In addition, the proactivity of the protection could be improved by the extension of the various profile authenticity verification procedures offered by the sites.
URI: URN:NBN:fi:hulib-201602041122
http://hdl.handle.net/10138/160061
Date: 2016
Discipline: Kauppaoikeus
Commercial law
Handelsrätt


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