I have been relatively absent from the blog for a few weeks as I worked to complete two pieces of writing that have consumed all my time and brainpower. Both concern trademark “fair use” — the defenses available to those who use trademarks to facilitate their free expression.
The first piece, Four Free Speech Goals for Trademark Law, is a paper I delivered at a symposium last November hosted by the Fordham Intellectual Property, Media & Entertainment Law Journal at Fordham Law School. The good folks at that journal will be publishing the essay a little later this year. As the title suggests, it sets out some normative goals for trademark fair use. The underlying theme: while striking the right balance between free speech and the purposes of trademark law certainly is important, it is not the only goal. In fact, it is just one out of four. There are also aspects of the doctrine’s procedural structure that chill speech by making litigation long, expensive, and hard to analyze in advance. The abstract and full paper are available here.
I also submitted a much longer article to various law reviews this week building on the Four Goals piece. I hope one of them offers to publish it. The new article, Rethinking Trademark Fair Use, critiques current doctrine and suggests possible reforms to better satisfy the procedural goals that now are not being met. That paper is not available online yet, but here is the abstract:
The ever-expanding scope and strength of trademark rights has caused justifiable fears of a threat to free expression. Until now, however, concerned scholars focused on perfecting the substance of legal rules that balance free speech against other goals. This effort is misplaced because most cases raising these issues in recent years ended in judicial decisions that favored speech. The real danger arises from the procedural structure of trademark law’s various “fair use” doctrines, which generate excessive ambiguity and prolonged litigation before ever reaching such positive outcomes. Resulting administrative costs discourage speakers from using trademarks expressively in the first place, creating a classic chilling effect. This Article is the first to analyze these problems with trademark fair use comprehensively and recommend pragmatic reform to address the problems. Instead of adding more bells and whistles to already complex law, we should craft simpler affirmative defenses that reduce uncertainty and allow for quick adjudication.
Now that I have sent both of those out the door, I hope you will see a little more of me on this site in the coming weeks!