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The Danger of Tam's Copymark Creep and Trademark Law's 20 NEV. L.J. 427 “CATCHY PHRASES THAT CONVEY A MESSAGE”: THE DANGER OF TAM’S COPYMARK CREEP AND TRADEMARK LAW’S NEW FIRST AMENDMENT ANALYSIS Stacey M. Lantagne In 2017, the Supreme Court decided Matal v. Tam, in which an Asian- American band called The Slants challenged the Patent and Trademark Office’s refusal to register the mark based on its disparaging nature. In a First- Amendment-focused opinion, the Supreme Court positioned trademarks as im- portant expressive speech that must be protected as such. In so doing, the Su- preme Court distorted the important foundations of trademark protection that had distinguished it from copyrights, putting the two on effectively equal footing. The Supreme Court’s decision makes fully explicit an ongoing blurring of the lines between copyright and trademark, as virtually all speech has come to be understood as essentially commercial, rendering commercial speech therefore al- so expressive by default. Copyright holders have sought to treat their copyrights more like trademarks, wishing to expand them indefinitely to protect their status as the source of particular creative franchises. Meanwhile, as the Supreme Court’s decision in Tam illustrates, trademark holders have sought to treat their trademarks more like copyrights, proposing artistic expression rather than com- mercial transactions. This Article contrasts the analysis of Tam with previous disparaging trade- mark cases, highlighting how Tam shifts trademark analysis from its traditional considerations of commerce and marketplace into a discussion of traditional copyright considerations of expressive creativity and artistic viewpoints. This Ar- ticle argues that Tam’s treatment of trademarks, carried to its natural conclu- sion, could have the result of hollowing out many trademark law ideals, such as protecting consumers from deception, encouraging effective and efficient market- place competition, and defending public discourse from commercial ownership. This Article concludes that there is value in maintaining the separation of trade- Assistant Professor of Law, University of Mississippi School of Law. The author wishes to thank the participants of the IP Mosaic Conference, especially Jasmine Abdel-Khalik and Yolanda King, and the University of Mississippi Faculty Writing Groups for helpful com- ments and suggestions. The author thanks Chase Wylie and Morgan Jackson for research assistance and is also grateful for the University of Mississippi School of Law Summer Re- search Grant that enabled this article. 427 20 NEV. L.J. 427 428 NEVADA LAW JOURNAL [Vol. 20:2 marks and copyrights and remembering their separate foundational values, in order to protect all speech from now seemingly inevitable commodification. TABLE OF CONTENTS INTRODUCTION ............................................................................................... 428 I. TRADEMARKS AND THEIR EXPRESSIVENESS ...................................... 429 II. TRADITIONAL DISPARAGEMENT ANALYSES ....................................... 432 A. The REDSKINS Saga .................................................................. 434 III. TAM .................................................................................................... 437 A. What Tam Says ........................................................................... 438 B. How Tam Is Wrong ..................................................................... 439 IV. WHY TAM IS DANGEROUS ................................................................... 443 A. Consumer Protection .................................................................. 446 B. Dilution Issues ............................................................................ 450 C. Destroying Public Debate and Conversation.............................. 450 CONCLUSION .................................................................................................. 455 INTRODUCTION In the 1990s, a class of Native Americans challenged the trademark regis- trations for REDSKINS, the Washington, D.C. football team, based on a sec- tion of the trademark statute that prohibited disparaging trademarks.1 The case got tangled in a number of procedural thickets,2 but eventually resulted in a rul- ing that focused closely on the unique nature and benefits of the trademark reg- istration scheme.3 Last year, the Supreme Court decided a similar case, Matal v. Tam, in which an Asian-American band called The Slants challenged the Trademark Office’s refusal to register the mark based on its disparaging nature.4 The Su- preme Court’s ruling ignored the unique nature and benefits of trademark regis- tration in favor of a First Amendment-focused opinion that equated trademarks with expressive speech. The Supreme Court’s decision in Tam reflects the extent to which com- mercial speech has come to be viewed as creative speech. The lines that we previously used to divide copyright and trademark into separate doctrines have been gradually breaking down. In a previous article, The Copymark Creep, I examined this phenomenon from the point of view of copyright law, detailing 1 Pro-Football, Inc. v. Blackhorse, 62 F. Supp. 3d 498, 500 (E.D. Va. 2014). 2 See e.g., id. at 500–01. 3 See id. at 508–09. 4 See Matal v. Tam, 137 S. Ct. 1744, 1754 (2017). 20 NEV. L.J. 427 Spring 2020] “CATCHY PHRASES” 429 how various copyright holders have begun to treat their copyrights like trade- marks.5 Tam indicates that the copymark creep is happening from the other side, too: various trademark holders have begun to treat their trademarks as operat- ing more like copyrights, and the Supreme Court in Tam has stamped approval on this approach. This conflation of the two doctrines threatens to undercut the purpose of both and leave us with the effectiveness of neither. This Article begins by discussing the analytical structure of disparaging trademark cases prior to Tam, with a particular focus on the REDSKINS litiga- tions. This Article then contrasts the analysis of Tam, highlighting how Tam shifts trademark analysis from its traditional considerations of commerce and marketplace confusion into a discussion of traditional copyright considerations of expressive creativity and political viewpoints. Thereafter, the Article exam- ines the implications of this shift and the impact it could have on many other traditional trademark law doctrines, arguing that Tam’s analytical underpin- nings, carried to their natural conclusions, have the result of hollowing out many traditional trademark law ideals, such as protecting consumers from de- ception and encouraging effective marketplace competition. It has the addition- al critical effect of making vulnerable the robust exchange of ideas that it pur- ports to protect. This Article concludes that trademark law as a body of law separate from copyright law serves important consumer-protection functions that should not be gutted in the name of protecting creative expression, when copyright law exists to do just that. I. TRADEMARKS AND THEIR EXPRESSIVENESS A trademark is “any word, name, symbol, or device, or any combination thereof . [used] to identify and distinguish . goods . from those manu- factured or sold by others and to indicate the source of the goods . .”6 Con- gress enacted the first federal trademark system in 1870.7 However, in 1879 the Supreme Court declared it unconstitutional, warning Congress that its power to regulate trademarks stemmed from the Constitution’s Commerce Clause and thus any statute had to be positioned within that clause’s auspices.8 There was a series of challenges to this idea, asserting that in fact trademarks should be lumped in with copyrights under the Constitution’s Copyright Clause.9 Howev- er, even the parties arguing the case themselves seemed dubious of the equiva- 5 Stacey M. Lantagne, The Copymark Creep: How the Normative Standards of Fan Com- munities Can Rescue Copyright, 32 GA. ST. U. L. REV. 459, 462 (2016). 6 15 U.S.C. § 1127 (2018). 7 1 J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 5:3 (5th ed. 2019). 8 Id. 9 See id. 20 NEV. L.J. 427 430 NEVADA LAW JOURNAL [Vol. 20:2 lency of trademarks and copyrights,10 and the Supreme Court unequivocally and unanimously rejected the idea, however, drawing a line around trademarks as symbols of commercial usage rather than the vehicles of creative expression for which copyright was designed: If we should endeavor to classify [trademarks] under the head of writings of au- thors, the objections are . strong. In this, . originality is required. And while the word writings may be liberally construed, as it has been, to include original designs for engravings, prints, &c., it is only such as are original, and are found- ed in the creative powers of the mind. The writings which are to be protected are the fruits of intellectual labor, embodied in the form of books, prints, engrav- ings, and the like. The trade-mark may be, and generally is, the adoption of something already in existence as the distinctive symbol of the party using it. At common law the exclusive right to it grows out of its use, and not its mere adop- tion. By the act of Congress this exclusive right attaches upon registration. But in neither case does it depend upon novelty, invention, discovery, or any work of the brain. It requires no fancy or imagination, no genius, no laborious thought. It is simply founded on priority of appropriation.11 From this initial foundation that trademarks concerned commerce, Con- gress put together legislation that eventually became the
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