Fuck the Draft ®: Notes on the First Amendment and Trademark Law

Abstract

This draft presents an analytical critique of the Federal Circuit’s decision, In re Tam, a game-changing decision regarding First Amendment scrutiny of trademark law. It is preliminary and distributed, without footnotes, for discussion purposes only. While the specific statutory provision at issue is the anti-disparagement section of Section 1052(a) of the Lanham Act, the court’s broad wielding of strict scrutiny for content based speech restrictions has implications for claims of dilution under the Lanham Act and state law. The argument begins with the observation that slogans have different meanings when displayed on clothing as a trademark from when they are displayed as a personal statement. The example of the phrase “Fuck the Draft” from the Supreme Court’s opinion in Cohen v. California illustrates the point. Because trademark speech is different from ordinary speech, First Amendment scrutiny needs to be attuned to the contexts in which trademarks are used and the government’s interest in promoting distinctive marks that divert the attention of consumers to products and services. Trademark speech has a very narrow function, which requires greater room for government regulation, even for content-based impositions on speech.

Keywords: Trademarks, First Amendment, Free Expressiom, Marketplace of Goods, Marketplace of Ideas