Abstract

http://ssrn.com/abstract=728572
 
 

Citations (2)



 
 

Footnotes (388)



 


 



Descriptive Trademarks and the First Amendment


Lisa P. Ramsey


University of San Diego School of Law


Tennessee Law Review, Vol. 70, p. 1095, 2003
INTELLECTUAL PROPERTY LAW REVIEW, Vol. 36, p. 271, Karen B. Tripp, ed., West Publishing, 2004
San Diego Legal Studies Paper No. 06-13

Abstract:     
The protection of exclusive rights in descriptive trademarks is an unconstitutional restriction of speech under the First Amendment. Trademark laws that prohibit a competitor from using trademarked descriptive words to sell a product fail to satisfy the Central Hudson test for evaluating the constitutionality of commercial speech regulations. The use of a descriptive term to accurately describe a product is not misleading expression regardless of whether another business claims trademark rights in that term. Although the government has a substantial interest in protecting the ability of consumers to identify and distinguish among the products of a business and its competitors, descriptive trademark laws do not directly advance this interest and are more extensive than necessary. Descriptive marks do not identify the source of a product as well as a mark that is fanciful, arbitrary, or suggestive because descriptive marks retain their original descriptive meaning. As descriptive marks quickly and cheaply provide consumers with information regarding the attributes of a product, protecting exclusive rights in such marks does not directly and materially further trademark law's goal of helping consumers identify and distinguish among the products of competing manufacturers. Current trademark law also stifles the free flow of commercial information more than necessary when it protects exclusive rights both in inherently distinctive marks and descriptive marks. The consumer-oriented goals of trademark law are satisfied if the government grants and enforces trademark rights only in inherently distinctive marks.

Number of Pages in PDF File: 83

Keywords: trademark, descriptive trademarks, first amendment, Central Hudson

JEL Classification: K10

Accepted Paper Series


Download This Paper

Date posted: May 24, 2005  

Suggested Citation

Ramsey, Lisa P., Descriptive Trademarks and the First Amendment. Tennessee Law Review, Vol. 70, p. 1095, 2003; INTELLECTUAL PROPERTY LAW REVIEW, Vol. 36, p. 271, Karen B. Tripp, ed., West Publishing, 2004; San Diego Legal Studies Paper No. 06-13. Available at SSRN: http://ssrn.com/abstract=728572

Contact Information

Lisa P. Ramsey (Contact Author)
University of San Diego School of Law ( email )
5998 Alcala Park
San Diego, CA 92110-2492
United States
Feedback to SSRN


Paper statistics
Abstract Views: 2,854
Downloads: 221
Download Rank: 78,385
Citations:  2
Footnotes:  388
Paper comments
No comments have been made on this paper

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo1 in 0.375 seconds