Protecting Nominative Fair Use, Parody, and Other Speech-Interests by Reforming the Inconsistent Exemptions from Trademark Liability

Abstract

Federal trademark law exempts certain communicative uses of a trademark from liability so that the public can freely use a trademark to comment on the markowner or to describe its products. These exemptions for “speech-interests” are badly flawed because their scope is inconsistent between infringement and dilution law, and because the cost and difficulty of claiming their protection varies significantly from court to court. Many speech-interests remain vulnerable to the chilling threat of litigation even though they are “protected” by current law. This Note proposes a simple statutory reform that will remedy this inconsistency by creating an express safe harbor for speech-interests in the Lanham Act. This reform will give full effect to the policy behind these exemptions: that if they apply, the public ought to be able to freely use a trademark in discourse. This reform also furthers the Lanham Act’s purpose of establishing a uniform system of nationwide trademark protection by endorsing the simple principle that a given use of a trademark should be either consistently protected from or vulnerable to suit in every court and under every cause of action.

Keywords: trademark, speech, reform, parody, fair use