The constitution allow our courts to seek light when interpreting the bill of rights from the international and foreign laws. It is important to consider other countries jurisprudence before exercising the merits of the case.In Belgium, the high-profile trademark infringement case was held, where the court was asked to strike a balance between the right to property and artistic freedom of expression. In which both these rights are recognized as the most important rights by a number of conventions, most importantly the European Convention on human rights and the EU Charter of fundamental RightsThe court held that it was essential to weigh the two fundamental rights.
In doing so, it is important to determine the appropriate criteria for striking that balance, before exercising the merits of the claim. The following criteria must be take into account by the national court:
- the extent to which the expression has a commercial nature or purpose
- the extent to which the expression covers a general interest, is socially relevant or enters into a debate
- the relationship between those two criteria
- the degree of reputation of the trademark relied on the extent of the infringing use, its intensity and systematic nature as well as its coverage in terms of territory, time and volume, also having regard to the message which the expression aims to convey
- the extent to which the expression, and circumstances accompanying that expression, such as its name, title or way of promoting, affect the distinctive character, reputation and image of the trademark relied on
- the extent to which the expression displays a proper creative contribution and the extent to which one attempted to prevent confusion or association with the trademark relied on, or the impression that there is a commercial or other link between the expression and the trademark owner, also having regard to the way in which the trademark owner secured a certain image and reputation for trademark through advertising and communication strategies.
