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Balancing Trademark and Free Speech Rights in Trademark Registration and Enforcement Laws

Original Air Date 8.16.22
This course has expired and is no-longer eligible for CLE.

One question after Tam and Brunetti is whether other trademark registration and enforcement laws might conflict with the right to freedom of expression. The first part of this webinar explores the issue of whether the free speech right in the First Amendment requires the U.S. Patent and Trademark Office to refuse to register certain words, names, symbols, or other subject matter to protect free expression and fair competition in the marketplace. Among other things, we will discuss trademark doctrines like failure to function that have been invoked to prevent one entity or person from owning exclusive trademark rights in curse words, political slogans, and other messages displayed on T-shirts and other types of expressive merchandise. The second part of this webinar reviews the current status of defensive doctrines in trademark infringement and dilution law that purport to balance trademark and free speech rights. We will discuss the different standards of review courts employ when balancing First Amendment considerations against claims of trademark violations and examine the role of the parody defense in infringement and dilution litigation.

Presented by: Lisa P. Ramsey, University of San Diego School of Law; and Wendi E. Sloane, Barack Ferrazzano Kirschbaum & Nagelberg

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