Rethinking Trademark Fair Use

Abstract

The ever-expanding scope and strength of trademark rights has caused justifiable fears of a threat to free expression. Until now, however, concerned scholars generally focused on perfecting the substance of legal rules that balance free speech against other goals. This effort is misplaced because most cases raising these issues in recent years ended in judicial decisions that favored speech. The real danger arises from the procedural structure of trademark law's various "fair use" doctrines, which generate excessive ambiguity and prolong litigation before ever reaching such positive outcomes. Resulting administrative costs discourage speakers from using trademarks expressively in the first place, creating a classic chilling effect. This Article is the first to analyze these problems with trademark fair use comprehensively and recommend pragmatic reform to address the problems. Instead of adding more bells and whistles to already complex law, we should craft simpler affirmative defenses that reduce uncertainty and allow for quick adjudication.

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

JEL Classification: O34