The third edition of the ECTA ®etreat was held in Brussels (Belgium) on 4 March 2020. The event was dedicated to the topic of freedom of speech and IP rights, which fits well with ECTA’s mission statement ‘Caring for a balance of IP rights’.

The ®etreat was officially opened by ECTA President Mr. Sozos-Christos Theodoulou. Mrs. Carina Gommers, Partner at HOYNG ROKH MONEGIER LLP and Secretary of the ECTA Anti-Counterfeiting Committee was the moderator of an excellent panel of speakers.

The first speaker, Mr. Dieter Delarue, Partner at law firm Van Innis & Delarue, focused on the trade mark law aspects of freedom of speech. He explained that, although there is no explicit parody exception in trade mark law, the recitals of the EUTMD/EUTMR emphasize the importance of freedom of expression and are therefore often referred to when interpreting the notion of “due cause”. Mr. Delarue walked the audience through several case law examples and particular attention went to a recent decision of the Benelux Court of Justice in the case of Moët Hennessy Champagne Services (MHCS)/Cedric Art. The speaker sees in this case a missed opportunity to have the CJEU determine which criteria are relevant to assess the “due cause”.

In the second session, Prof. Stefan Kulk from the Utrecht University (The Netherlands), discussed the role of fundamental rights in some landmark CJEU copyright decisions where the Court, taking into account the freedom of expression, gave a broad interpretation to copyright exceptions such as the citation exception and the journalistic use exception. The speaker then took a closer look at the parody exception in copyright law, referring to a.o. the Deckmyn CJEU case law. He concluded that fundamental rights play an increasingly important role, but that there remains a tension between, on the one hand, the primacy of the EU legislator, and on the other hand, the interpretation freedom of the courts.

The third speaker, Prof. Koen Lemmens of the KU Leuven (Belgium), focused on the case law of the ECHR re Art. 10 ECHR and artistic speech. In addition to the classical three-prong test laid down in Article 10.2 ECHR (the limitation to freedom of expression must be prescribed by law, must serve a legitimate aim and must be proportionate), both collective and individual interests need to be taken into account. Whereas political speech has always enjoyed a high level of protection, this is not so much the case for commercial speech. More recent case law of the ECHR suggests that art works including a degree of societal criticism would therefore deserve a higher degree of protection. However, ECHR case law on conflicts between IP rights and freedom of expression remains scarce.

The sessions were followed by a lively debate between the audience and the speakers. In any event, conflicts between trademarks and freedom of speech will always have to be decided by balancing both rights. The attendees and the intervening speakers concurred on the point that the presence or absence of a dominant commercial motive of the person relying on freedom of speech will play an important role in such balancing exercise.

ECTA’s Second Vice-President, Mr. Mladen Vukmir closed the event. He emphasized that the protection of modern-day creativity needs overlapping IP rights and that the interaction between the different IP rights is and remains a topic of interest for ECTA.

The event was followed by a networking drinks.

The presentations made during the ®etreat are now available here below.

The video of the ECTA ®etreat will soon be available to members in the Private Section of this website/Library/Webinars.

Prepared by Carina Gommers (Partner at HOYNG ROKH MONEGIER LLP and Secretary of the ECTA Anti-Counterfeiting Committee)