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When is a Use in Commerce a Noncommercial Use?

Lee Ann W. Lockridge

Louisiana State University Law Center

March 23, 2009

Florida State University Law Review, Vol. 37, p. 337, 2010

When is a use in commerce a noncommercial use? This question may sound like the opening for a ridiculous legal riddle, but it is a real conundrum in trademark dilution law. The current federal dilution statute, section 43(c) of the Lanham Act, creates liability based on the “use of a mark or trade name in commerce,” when that use is likely to blur or tarnish a famous mark. At the same time, the statute characterizes certain activities as non-actionable “exclusions,” including “any noncommercial use of a mark.” So the use of a mark in commerce can be a noncommercial use — but how, and why? This Article comprehensively examines the statutory exclusion for “noncommercial use of a mark” within the federal dilution statute. This includes the legislative history of the federal dilution statute, trademark and First Amendment jurisprudence, and court decisions to date interpreting the statute. Based on this research, the Article explains how courts and potential litigants should interpret the exclusion to achieve its purpose as a predictable, efficient defense that excuses a broad range of expressive uses.

Number of Pages in PDF File: 56

Keywords: trademark, dilution, noncommercial use, commercial use, First Amendment, free speech, commercial speech

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Date posted: June 24, 2008 ; Last revised: July 22, 2010

Suggested Citation

Lockridge, Lee Ann W., When is a Use in Commerce a Noncommercial Use? (March 23, 2009). Florida State University Law Review, Vol. 37, p. 337, 2010. Available at SSRN: https://ssrn.com/abstract=1148285

Contact Information

Lee Ann W. Lockridge (Contact Author)
Louisiana State University Law Center ( email )
440 Law Center Building
Baton Rouge, LA 70803
United States
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