Re: Advertising violations

On Tue, 23 Mar 1999, Bob Cumbow <cumbr[_at_]perkinscoie.com> wrote:
>
> Nothing actually "overrides" the First Amendment. I think it is more
> useful to regard copyright, trademark, and right of publicity as
> LIMITATIONS on the First Amendment. Also keep in mind that while
> copyright generally is of issue where two parties' First Amendment
> rights conflict, trademark and right of publicity are limitations on
> COMMERCIAL speech, which enjoys a lower level of First Amendment
> protecton to begin with.
>

Well, sometimes. The basic rationale for avoiding the First Amendment problem in trademark law is that trademark law prohibits false or misleading commercial speech, and that such speech is "unprotected" as a false statement of fact. So far, so good -- I agree with Bob.

But (1) trademark law has recently been expanded to reach speech that cannot be called "commercial" under the Supreme Court's definition -- non-business domain name use, for example, or the title of a book or movie; and (2) it has also been expanded to cover statements that aren't themselves false or misleading -- for example, the standard in dilution cases does not require proof of consumer confusion.

These recent expansions in trademark law are harder to reconcile with the First Amendment.

If you're interested, I've written a bit on this subject in an article with Eugene Volokh forthcoming in Duke Law Journal "Real Soon Now".

Mark A. Lemley
Professor of Law, University of Texas School of Law Of Counsel, Fish & Richardson, P.C.
mlemley[_at_]mail.law.utexas.edu

Information on UT's Intellectual Property program: http://www.utexas.edu/law/acadprogs/intelprop/

My publications list: http://www.law.utexas.edu/lemley/pubs.htm Received on Wed Mar 24 1999 - 16:18:50 GMT