Trademarks play a crucial role in distinguishing and promoting products and services. However, ensuring that these marks comply with public order and morality is essential from both legal and ethical perspectives. In Azerbaijan, the use of immoral or unethical expressions in trademarks is not permitted. Looking at international practice, the U.S. Supreme Court has attempted to balance certain restrictions with freedom of expression. In this article, we will examine the ethical boundaries and legal implications of trademarks by exploring both Azerbaijani legislation and international approaches.

We will discuss the ethical boundaries and legal implications of trademarks.
What are the limitations regarding immoral trademarks under Azerbaijani legislation?

According to Article 1 of the Law of the Republic of Azerbaijan “On Trademarks and Geographical Indications”:

“A trademark is a sign or any combination of signs that distinguishes the goods or services of one entrepreneur from those of another and can be graphically represented.”

In other words, a trademark is a sign or a combination of several signs that makes it possible to distinguish the goods or services of one entrepreneur from those of others and can be graphically expressed.

According to subparagraph (e) of Article 5 of the Law “On Trademarks and Geographical Indications,” trademarks consisting of expressions contrary to public order, morality, and ethical norms, elements that may harm a person’s reputation, as well as religious and state symbols, are not allowed to be registered.

Thus, the legislation of the Republic of Azerbaijan explicitly prohibits the use of immoral expressions in trademarks. Naturally, determining which expressions are considered immoral and the criteria for such assessment is itself a separate topic for discussion.

What is the role of public order and morality in trademarks under international law?

To begin with, it should be noted that Article 6quinquies, Section B(3) of the Paris Convention for the Protection of Industrial Property grants member states the right to refuse the registration of trademarks that are contrary to morality or public order. Specifically:

“If the trademark is contrary to morality or public order, and in particular if it is likely to deceive the public, registration may be refused. However, it is understood that a mark shall not be considered contrary to public order solely because it does not comply with a provision of trademark legislation, unless that provision itself relates to public order.”

The Republic of Azerbaijan is also a party to this Convention.

In conclusion, the Paris Convention provides an important framework for evaluating trademarks from the perspective of public order and morality. While it restricts the registration of trademarks containing immoral or unethical expressions, refusal of registration is permissible only under certain conditions.

Azerbaijan has acceded to this international norm and, accordingly, ensured compliance with ethical and public order requirements for trademarks through its national legislation. However, determining which specific expressions qualify as immoral remains a broader issue requiring further discussion.

Tam and Brunetti: How U.S. Supreme Court Decisions Changed Free Speech in Trademarks

In international practice, particularly in the United States, legal disputes involving trademarks often highlight issues of free speech and morality. In the cases of Matal v. Tam and Iancu v. Brunetti, the U.S. Supreme Court ruled that certain restrictions on trademarks violated the First Amendment. These decisions show that trademark laws are not entirely separate from morality, but they allow some limitations on offensive expressions.

Both cases were decided by the U.S. Supreme Court and removed certain restrictions on trademarks. In Matal v. Tam (2017), the Court held that Congress’s refusal to register trademarks containing “disparaging” expressions violated the First Amendment. In Iancu v. Brunetti (2019), the Court ruled that the law prohibiting the registration of marks deemed “immoral” or “scandalous” was also unconstitutional. Thus, the Supreme Court struck down these restrictions based on the principle of free speech.

However, the Tam and Brunetti cases do not imply a complete separation of trademark law from morality. Specifically, they do not require Congress to protect all vulgar or indecent expressions. The Brunetti decision left open the possibility for Congress to impose restrictions on immoral expressions, and some justices noted that such limitations could be constitutional. Therefore, the First Amendment may allow certain immoral marks to remain unprotected.

Conclusion:

1. Azerbaijani legislation prohibits the use of immoral expressions in trademarks, prioritizing the protection of public order and morality.

2. Under international law, the Paris Convention allows for the prevention of registering trademarks that are contrary to public order or morality.

3. In Matal v. Tam and Iancu v. Brunetti, the U.S. Supreme Court emphasized the principle of free speech and removed certain restrictions. However, these decisions do not imply that trademarks should be protected regardless of morality.

4. International practice seeks to maintain a balance when determining ethical boundaries in trademarks.