Australia–EU–US Conversation on Trademarks and Freedom of Expression

The relationship between trademark protection and freedom of expression continues to raise difficult questions across jurisdictions. Bringing together perspectives from Australia, the US and the EU, this conversation will examine how different legal systems address these tensions and what their approaches can learn from each other.

In Australia, where freedom of expression is not constitutionally entrenched, the discussion will explore how international human rights jurisprudence can inform domestic trademark law, and how trademark law’s own doctrines of distinctiveness and use can safeguard against overreach without creating additional doctrinal mechanisms. In the US, disputes ranging from Taylor Swift’s “Life of a Showgirl” to drag queen Pattie Gonia raise questions about whether free speech concerns should be addressed through infringement defences alone, or also through limits on registration and the scope of trademark rights. Finally, in the EU, the first-ever CJEU judgment on third-party use of trademarks for expressive purposes – involving IKEA’s trademarks in a far-right political campaign – will have been handed down just days earlier, offering a timely opportunity to compare the European approach with those in Australia and the US.

Programme
14:30-15:00Welcome Tea, Coffee & Snacks
15:00-15:05Introduction
Genevieve Wilkinson (University of Technology Sydney), Michael Handler (UNSW Sydney), Martin Senftleben (IViR, University of Amsterdam)
15:05-15:15Trade Marks, Freedom of Expression and International Law: An Australian Perspective
Genevieve Wilkinson (University of Technology Sydney)
15:15-15:25Failure to Function and Freedom of Expression: The US and Australia Compared
Vicki Huang (Deakin University)
15:25-15:35Balancing Trademark and Free Speech Rights when Marks have Informational or Expressive Value
Lisa Ramsey (University of San Diego School of Law)
15:35-15:45 Hot Off the Press in the EU: First Thoughts on the IKEA Judgment
Elena Izyumenko (IViR, University of Amsterdam)
15:45-16:00Q&A and Plenary Discussion
16:00–16:30Tea, Coffee & Snacks

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