A Break For Art: Evaluation of the Conflicts Between Trademark Rights and the Freedom of Artistic Expression Considering Turkish and European Union Regulations

The repealed Regulation (EU) 2015/2424 on the Community Trade Mark introduced a specific rule to safeguard the freedom of artistic expression against trademark rights. According to this rule stated in Recital 21 of the EU Trade Mark Regulation 2017/1001 and Recital 27 of the EU Trade Mark Directive 2015/2436, which are currently in force, the use of a trademark by third parties for the purpose of artistic expression should be considered as fair, provided that it is in accordance with honest practices in industrial and commercial matters. In Turkish law, there is no special provision regarding the issue. However, since this rule is explicitly mentioned in the referred EU regulations that were taken into consideration during the legislative process of Industrial Property Code no. 6769, it is possible to adopt the same approach for our law system. In addition, the general prerequisites required for trademark infringement and fair use exceptions may help to safeguard the freedom of artistic expression. On the other hand, it is unclear whether these provisions are adequate to fully protect the freedom of artistic expression. In particular, it may be quite challenging to safeguard freedom of expression against the extended protection granted to well-known trademarks. In this respect, based on US, EU and Turkish law, legal regulations that can be applied in cases of conflict between freedom of artistic expression and trademark rights and whether they are adequate to safeguard the artistic expressions are evaluated in this study.