Journal Article

Trade mark torture: some musings on <i>Associated Newspapers v Persons Unknown</i>

Christopher Wadlow

in Journal of Intellectual Property Law & Practice

Volume 6, issue 3, pages 177-182
Published in print March 2011 | ISSN: 1747-1532
Published online March 2011 | e-ISSN: 1747-1540 | DOI: http://dx.doi.org/10.1093/jiplp/jpq181
Trade mark torture: some musings on Associated Newspapers v Persons Unknown

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Legal context

The decision in Associated Newspapers v Persons Unknown concerned a successful application for an emergency ex parte injunction against the distribution of a politically-motivated spoof imitation of the London give-away newspaper METRO.

Key points

Under the Human Rights Act 1998, applications such as this are obliged to balance the rights of the claimant against the right of free expression, with the claimant being expected to show a better than 50:50 prospect of success on the merits.

Practical significance

It is suggested that neither the legal, nor the moral, issues are as clear-cut as may have appeared. The trade mark infringement argument, in particular, seems in retrospect to have been fatally flawed. However, the arguments from freedom of expression were by no means all one way in favour of the defendants, since cases such as this in which one party unilaterally chooses to use the other as a mouthpiece for its own political views raise profound and difficult issues of policy, to which the analogy of torture is not entirely inappropriate.

Journal Article.  4729 words. 

Subjects: Arbitration ; Intellectual Property Law

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