Time to rethink the limits to trade mark rights?

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2026

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Time to rethink the limits to trade mark rights?

Last week the UK introduced clear exceptions to the rights of copyright owners. Is it now time to set out the limits to trade mark law and clarify what third parties can do with registered marks?

Among the changes introduced into the UK’s copyright regime on October 2 are a new format shifting exception and the right to use copyright material for legitimate parodies. There is also a new exception for criticism or review, which follows more exceptions for libraries, schools and disabled people, which came into force in June. Should there be similar exceptions for trade marks?

The answer from a group of more than 30 academics from across Europe seems to be yes. They have urged lawmakers considering the European Commission’s proposals to update the Trade Marks Directive and CTM Regulation to clarify what exceptions exist.

Court-of-justice-judges

In particular, they argue that the rights of trade mark owners need to be balanced with freedom of expression and the guarantee of undistorted competition, saying that such balance is important in the light of “ongoing technological, economic and social developments”.

The implication is that trade mark law has gone too far in protecting the rights of trade mark owners. That is an argument that may have gained strength since the Court of Justice of the EU (judges, pictured right) began expanding the list of legitimate “functions” of a trade mark.

Specifying a list of exceptions to trade mark rights might lead to rather messy, loophole-filled legislation. But perhaps it is necessary to preserve public support for trade mark law.

So far much of the debate about the right balance to be struck between the rights of IP owners and those of competitors and consumers has been focused on copyright (think ACTA, SOPA and PIPA) and on patents (think the debates on software and business method patents, and cases such as Myriad). In those areas of the law, it seems that a backlash from increasingly organised consumers and civil society has led to a rethink on the part of policy makers and a recognition on the part of IP owners that advocating a strong pro-IP position could ultimately weaken support for the whole IP system.

Does this new call from a group of academics reflect similar tensions within the trade mark sphere? If so, does the line between the rights of trade mark owners and the rights of trade mark users and third parties need to be redrawn? Let us know what you think.

more from across site and SHARED ros bottom lb

More from across our site

As trade secret filings rise due to AI development and economic espionage concerns, firms are relying on proactive counselling to help clients navigate disputes
IP firm leaders share why they remain positive in the face of falling patent applications from US filers, and how they are meeting a rising demand from China
The power of DEI to swing IP pitches is welcome, but why does it have to be left so late?
Mathew Lucas has joined Pearce IP after spending more than 25 years at Qantm IP-owned firm Davies Collison Cave
Exclusive survey data reveals a generally lax in-house attitude towards DEI, but pitches have been known to turn on a final diversity question
Managing IP will host a ceremony in London on May 1 to reveal the winners
Abigail Wise shares her unusual pathway into the profession, from failing A-levels to becoming Lewis Silkin’s first female IP partner
There are some impressive AI tools available for trademark lawyers, but law firm leaders say humans can still outthink the bots
Lawyers at Simmons & Simmons look ahead to a UK Supreme Court hearing in which the court will consider whether English courts can determine FRAND terms when the licence is offered by an intermediary rather than an SEP owner
Firm says appointment of Jeremy Drew from RPC will help create ‘unrivalled IP powerhouse’, as it looks to shore up IP offering ahead of merger
Gift this article