ABSTRACT
Trademark law is commonly understood as serving two constituencies: consumers and producers. Its doctrines are justified, courts and scholars contend, by reducing consumer search costs and protecting producers’ investments in goodwill. Under this conventional account, trademark law’s coherence – and its legitimacy – depend on its alignment with these constituencies’ economic interests.
That account, however, overlooks or mischaracterizes substantial portions of trademark law. Across the trademark lifecycle – from registration and protection to infringement, defenses, and remedies – courts and Congress have crafted rules that neither prevent consumer confusion nor safeguard producer incentives. Instead, they regulate speech conveyed through trademarks, the social reputation and cultural associations of marks, and the conditions under which trademarks may be used to comment on, criticize, or participate in public discourse, among other things. This creates a doctrinal puzzle: the consumer-producer account cannot justify why trademark law repeatedly regulates various social and political practices when no confusion or appropriation is at issue. That puzzle has become increasingly urgent as courts subject trademark rules to First Amendment scrutiny and demand a defensible account of the interests those rules serve.
This Article provides the missing piece of this doctrinal puzzle. Not only does trademark law serve consumers and producers; it has also long served additional legal subjects: communities and the public. These parts of trademark law do not merely reflect external or free-floating values. They reflect a different, augmented account of who trademark law is for. Drawing on historical and contemporary trademark statutes and doctrine – including bars to registration, the scope of trademark rights, and limitations on those rights – the Article shows that trademark law has long protected communal and public interests that cannot be reduced to economic exchange.
An account that recognizes the public and communities as relevant legal subjects of the trademark regime indexes harms to social meaning, cultural participation, and democratic discourse that the consumer-producer model cannot capture. But recognizing trademark law’s plural legal subjects is not merely clarifying; it is stabilizing. It helps explain divergent constitutional outcomes, reduces pressure toward First Amendment deregulation, and expands the scope of legitimate trademark lawmaking. In doing so, the Article offers a more accurate account of trademark law’s purposes and a more resilient framework for addressing emerging issues involving speech, identity, and new technologies.
Mazzurco, Sari, Who Trademark Law Is For (February 1, 2026), North Carolina Law Review (forthcoming 2027); SMU Dedman School of Law Legal Studies Research Paper No 724.
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