Reconciling Trademark Rights and Expressive Values: How to Stop Worrying and Learn to Love Ambiguity

Abstract

In the early 90's, I wrote two articles examining the expansion of trademark law from its core focus on confusion about marketing signals, to cover such matters as dilution, implications of sponsorship, and rights of publicity. I argued that these developments were putting increasing pressure on free speech interests and suggested that the operation of these symbols could be usefully categorized in two spheres - the commercial and the expressive. By analytically separating the spheres, I thought that both trademark and speech interests could be accommodated. In this essay, which looks at developments in the last decade, I admit that this solution is becoming increasingly less tractable. The exigencies of a global, on-line marketplace make stronger protection for trademarks necessary just when technology makes their widespread expressive use more feasible. Internet shopping requires both exclusivity and unrestricted availability - the former, to keep search costs down by ensuring that consumers find the right site; the latter, to allow markets to work efficiently by ensuring that consumers receive information about comparable products. The popularity of trademarks in humor and criticism create new profitmaking opportunities - and produce funds that can be channeled back into efforts to destabilize trademark meaning.

This paper begins with an examination of the doctrinal approaches taken thus far and the limits on what such analyses can achieve. It concludes that preventing confusion, dilution, and cyberconflicts are, in fact, no longer be feasible and that the best a legal system can do is adopt rules that help consumers accurately resolve the inevitable tension. Thus, closer attention needs to be paid to the strategies people employ when confronted with ambiguity. Lessons drawn from cognitive and behavioral research can, it is submitted, provide better protection for the interests of trademark holders and expressive users alike.

Keywords: intellectual property, trademarks, free speech, expressive interests, cognitive research, behavioral research

JEL Classification: D19, K19, L82, M31, O34