The Public's Domain in Trademark Law: A First Amendment Theory of the Consumer

Abstract:     
First Amendment theories of trademark law tend to focus on the need of speakers to employ trademarks in creating new speech — in parodies, comparative advertising, and other ccommunicative endeavors. An alternative use of the First Amendment in trademark law, however, would focus on the interests of consumers in autonomy as they make choices about how to respond to trademark meaning. First Amendment doctrine in other areas of the law involving persuasive communications provides useful material on which to draw in constructing the autonomous consumer. With that consumer more fully realized, modern expansions of trademark law, such as dilution and initial interest confusion, can be more thoroughly reconsidered and questioned.

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