Mitey Marks and Expressive Uses of Culturally Significant Trade Marks in Australia

摘要

Trade marks are important and valuable because they can benefit the interests of owners, consumers and the public. However, they can also impermissibly restrict the human right to freedom of expression. One example of freedom of expression restriction occurs when individuals seek to make expressive use of well-known marks on blogs. This article uses the example of expressive use of the well-known Vegemite mark on an opinion blog entitled Straylemite to consider how Australian trade mark legislation deals with expressive uses of well-known marks and whether those restrictions are permissible restrictions on freedom of expression. It compares the limited legislative protection for freedom of expression in Australia to American and European jurisdictions that have fundamental protection of freedom of expression for individuals as well as broader protection regimes available for well-known marks. Approaches to addressing freedom of expression concerns raised by trade mark protection in these jurisdictions are considered. To reduce the restrictions for freedom of expression posed in the blog example, a statutory fair expressive use defence to infringement is proposed to balance the competing interests engaged by trade mark protection.