Trademark Law as Regulation of Expression: Why Article 10 ECHR Should Become the Internal Grammar of European Trademark Law

This chapter argues that European trademark law increasingly operates as a system of expression regulation and should therefore be reconstructed in light of Article 10 ECHR. Trademark law no longer merely protects consumers against deception: through anti-dilution protection, expansive infringement standards, and morality-based registration rules, it increasingly governs the circulation of cultural and political meanings attached to trademarks, which themselves have become communicative resources used in parody, artistic appropriation, political criticism, activism, journalism, and public debate. The chapter first identifies the two principal contexts in which these tensions arise: restrictions on expressive reuse of trademarks and refusals to register allegedly immoral or offensive signs. It then analyses the Article 10 principles most relevant to trademark law, focusing on the listener-oriented structure of freedom of expression and its implications for confusion-based and anti-dilution protection; the constitutional treatment of commercial speech and the dangers of overly broad conceptions of “commerciality”; the heightened protection afforded to speech on matters of public interest; the protection of artistic expression, satire, and humour; the broader tolerance required for criticism of powerful corporate actors; and the contextual protection of offensive or provocative expression. Building on this framework, the chapter argues that freedom of expression should not remain an external defence applied only after infringement has been established. Instead, Article 10 values should shape trademark doctrine internally, including the interpretation of use in the course of trade, use in relation to goods or services, anti-dilution protection, due cause, and morality or public-order exclusions. It concludes that trademark law can retain its legitimate market-regulating role only if Article 10 ECHR becomes part of its internal doctrinal structure.