Increasing First Amendment Scrutiny of Trademark Law

Abstract

Trademarks consist of language. Trademark law regulates certain uses of trademarked language to communicate information or ideas, yet few courts subject trademark law to First Amendment scrutiny. This Article argues that more courts should. Not every infringing use of a trademark is misleading commercial speech. The Supreme Court has struck down other nonmisleading commercial speech regulations using intermediate constitutional scrutiny. Moreover, the Court's First Amendment jurisprudence dictates that content-based trademark laws regulating noncommercial speech should be subject to strict scrutiny analysis. This Article provides a detailed framework for understanding how trademark law can raise serious First Amendment concerns and sets forth the options for courts who acknowledge this conflict. Most courts protect speech by narrowly construing trademark claims and broadly interpreting defenses. This doctrinal approach protects expression in individual cases, but protected speech is still harmed by trademark law in the real world. It is often difficult to predict the outcome of trademark law's multi-factor balancing tests. Those who cannot afford to litigate will self-censor rather than fight for their right of free expression. Trademark law will better serve First Amendment interests if it contains more speech-protective trademark rules or categorical safe harbors for certain uses of trademarks. Among other benefits, categorical rules create more predictability and make it easier for courts to dispose of frivolous trademark disputes early. Finally, when trademark laws suppress or chill protected expression, courts should not hesitate to apply First Amendment scrutiny and find that law unconstitutional.

Keywords: Trademark, Constitutional, First Amendment, Free Expression, Free Speech, Commercial Speech

JEL Classification: K00