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Judges consider disparagement versus free speech

A session examining the interaction between trademarks and free speech included judges from three jurisdictions offering their perspectives on some hot-button issues and how their respective courts approach them.

Judges Kara Farnandez Stoll and Kimberly A. Moore, both of the United States Court of Appeals for the Federal Circuit; Elisabeth Ohm, Deputy Director of the Norwegian Board of Appeal for Industrial Property Rights; and Yasuhito Okinaka of The IP division of the Tokyo District Court answered questions posed by moderator Rachel Rudensky of Akerman, LLP in the U.S.

The takeaway was that, when it comes to the line between disparagement and free speech, viewpoints vary widely by culture, venue—and even trademark examiner. While Norway’s approach is fairly liberal, marks considered offensive to a “substantial composite” of a particular group are often rejected by the USPTO, said the panelists. In Japan, any mark that is potentially damaging to “public order or morality” can be refused.

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