Monday, April 22, 2019
Rebecca Tushnet, Georgetown University Law Center, has published The First Amendment Walks Into a Bar: Trademark Registration and Free Speech, at 92 Notre Dame L. Rev. 381 (2016). Here is the abstract.
This Article analyzes the First Amendment arguments against section 2(a)’s disparagement bar with reference to the consequences of any invalidation on the rest of the trademark statute. My fundamental conclusions are that In re Tam is wrongly reasoned even given the Supreme Court’s increased scrutiny of commercial speech regulations, and that to hold otherwise and preserve the rest of trademark law would require unprincipled distinctions within trademark law. More generally, the Supreme Court’s First Amendment jurisprudence has become so expansive as to threaten basic aspects of the regulatory state; the result of subjecting economic regulations such as trademark registration to strict First Amendment scrutiny shows the damage that can be done thereby.
Download the article from the Law Review website at the link.