Document Type

Article

Publication Date

2023

Abstract

This Chapter is concerned with the nature of trademarks as vehicles of expression. It takes, as its lesson study, the unfortunate Canadian Federal Court case of United Airlines v. Cooperstock in which a disgruntled United passenger quite spectacularly failed in his efforts to defend a trademark parody on his consumer complaints “gripe” site. The case demonstrates the risks of relying on trademark law’s internal limits and implicit exceptions to define the boundaries of the trademark owner’s control. I argue, first, that the case therefore underscores the need for explicit statutory exceptions to ensure breathing space for parody, criticism, and other fair and expressive uses of protected marks. Second, the case reveals the need for a positive conception of “user rights” in the trademark scheme parallel to that already recognized in Canada’s copyright law. But finally, I argue, if user rights are to have any real traction in the legal landscape of trademark law, a fuller appreciation is needed of the communicative and social value of marks—not just as indicators of source and incubators of commercially valuable meaning, but also as public sites of dialogic engagement and discursive struggle. Canada’s United case is a paradigmatic example—and a cautionary tale—of what happens when owners’ rights are overprotected, users’ rights are disregarded, and trademark limits are irresolutely drawn.

Comments

"This is a draft of a chapter that will appear in the forthcoming edited collection by Barton Beebe & Haochen Sun (eds), CHARTING LIMITATIONS ON TRADEMARK RIGHTS (Oxford University Press, 2022)"

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