Four Free Speech Goals for Trademark Law

Abstract:     
This Essay, prepared for the annual symposium of the Fordham Intellectual Property, Media & Entertainment Law Journal, sets out goals for preserving free speech within trademark law. In recent years, courts have begun to reach speech-protective results quite consistently in cases that raise such issues. They have not, however, developed unified or coherent doctrine for doing so, and they do not resolve such cases quickly. The resulting confusion of standards and prolonged litigation have a chilling effect on expression using trademarks, just as surely as if judges issued injunctions to prohibit the same speech. In short, procedural structure is at least as important as eventual outcomes. Therefore, in addition to achieving an appropriate substantive balance between economic and expressive objectives of trademark law, we should integrate First Amendment requirements into doctrine, design clearer standards, and facilitate faster and less expensive adjudication. Articulating these four goals sets the stage for upcoming work using them as standards to critique current law and propose reform.

Keywords: trademark, "free speech", "First Amendment", "intellectual property"

JEL Classifications: O34

Accepted Paper Series