Ned Snow, ‘Free Speech and Disparaging Trademarks’

Speech law has silenced trademark. A few months ago, the Federal Circuit ruled that the First Amendment requires Congress to grant trademark protection for disparaging speech. The ruling overturns decades of precedent that upholds the constitutionality of the anti-disparagement provision in the Federal Lanham Act. But the ruling does not end the debate. The issue is currently pending before the Fourth Circuit, and given its national scope, the issue is certain to be heard by the Supreme Court.

This Article argues against the Federal Circuit decision. As illustrated by the five different opinions from the en banc panel, the complexities of speech law easily lead to disparate conclusions, any one of which may seem reasonable. Yet if there is one principle of speech law that is certain, it is this: context is dispositive. The context of trademark law is particularly nuanced, so a failure to account for that context easily produces inconsistencies in doctrine and policy. Tellingly, none of the Federal Circuit’s five opinions consider whether the Majority’s holding is consistent with the rest of trademark law. None of the judges recognized that trademark law imposes other content-based criteria as conditions for protection — and has done so for over a century. Simply put, the Majority merely applied speech law to the narrow provision under consideration, failing to account for the broader context of trademark law. This Article provides that context. This Article concludes that the constitutionality of the anti-disparagement provision cannot be doubted in view of the constitutionality of trademark law itself.

Snow, Ned, Free Speech and Disparaging Trademarks (March 23, 2016). Boston College Law Review, Vol 57, No 5, 2016.

First posted 2016-03-28 07:15:18

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