ABSTRACT
Rosemary Coombe convincingly raises numerous incidences in which the kinds of protection offered to insignia under passing off actions and trademarks legislation have curtailed freedom of expression in the United States of America and Canada. The community that Coombe admires, the urban youth who identify with Black Bart, is not based on any significantly different depth of identity from people who identify with the commodified sign. Coombe argues that conceptions of responsibility, agency, harm, and responsibility for language and meaning, as implied through the use of insignia, provide the normative justification for controls over insignia. In the case of the parody of an insignia, the referent of the parody is the entity referred to by insignia. The protection for insignia, therefore, is not incompatible with freedom of expression in a democracy, in which rights are mediated by respect for the rights of others. Coombe is right that the current law restricts freedom of expression, but her argument is overstated.
