Trade mark torture: some musings on Associated Newspapers v Persons Unknown

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. 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. 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.