31 Pages Posted: 31 Aug 2011 Last revised: 15 Feb 2012
Date Written: August 29, 2011
Recent appearances of trademarks in popular culture – in rap lyrics, on reality TV shows, even in youth riots – have raised the question whether the owners of those trademarks might pursue legal remedies to protect their brands from unwanted social associations. This Essay argues that they cannot, and that we should understand this limitation on trademark rights as grounded in a principle that consumption of certain brands is an expressive act that First Amendment principles place outside trademark owners’ control.
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