Trademarks as Speech: Constitutional Implications of the Emerging Rationales for the Protection of Trade Symbols

50 Pages Posted: 12 Jun 2014

See all articles by Robert Denicola

Robert Denicola

University of Nebraska College of Law

Date Written: May 1, 1982

Abstract

For a long time, free speech rights did not reach the mundane communications at issue in the typical trademark infringement action. The information conveyed through the use of a trademark generally relates to the details of prospective commercial transactions. Restrictions on such "commercial speech" were long thought exempt from constitutional scrutiny. Recent years have seen this arbitrary division replaced by a more flexible model in which even purely commercial speech merits constitutional protection, although not necessarily equivalent to that afforded communications more intimately associated with fundamental first amendment values. The ability to restrict untruthful or deceptive commercial speech, however, has remained unquestioned. Traditional trademark and unfair competition theory, with its historic emphasis on consumer deception and confusion, thus rests comfortably within contemporary constitutional principles. But this confusion rationale has come under quiet attack. The notion of trademark misappropriation even in the absence of any likelihood of confusion is evident in much of the current case law, and the long dormant concept of trademark dilution appears poised to further expand the scope of trademark rights. This struggle to extend the scope of trademark protection raises the possibility of genuine conflict between trademark law and the first amendment. This Article examines the alternative rationales for the protection of trade symbols and considers their constitutional implications. The misappropriation and dilution rationales, whatever their substantive merits, do not endanger free speech interests when directed at the use of another’s mark as decoration or as a trademark for the user’s own goods. When the trademark is utilized as a vehicle for the communication of ideas, however, constitutional interests can no longer be ignored.

Keywords: trademarks, first amendment, dilution, free speech

Suggested Citation

Denicola, Robert, Trademarks as Speech: Constitutional Implications of the Emerging Rationales for the Protection of Trade Symbols (May 1, 1982). Wisconsin Law Review, Vol. 1982, No. 2, 1982, Available at SSRN: https://ssrn.com/abstract=2448318

Robert Denicola (Contact Author)

University of Nebraska College of Law ( email )

103 McCollum Hall
P.O. Box 830902
Lincoln, NE 68583-0902
United States

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