Santa Clara Law Santa Clara Law Digital Commons Faculty Publications Faculty Scholarship 1-1-2005 Policing the Border Between Trademarks and Free Speech: Protecting Unauthorized Trademark Use in Expressive Works Pratheepan Gulasekaram Santa Clara University School of Law,
[email protected] Follow this and additional works at: http://digitalcommons.law.scu.edu/facpubs Recommended Citation 80 Wash. L. Rev. 887 This Article is brought to you for free and open access by the Faculty Scholarship at Santa Clara Law Digital Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact
[email protected]. Copyright C 2005 by Washington Law Review Association POLICING THE BORDER BETWEEN TRADEMARKS AND FREE SPEECH: PROTECTING UNAUTHORIZED TRADEMARK USE IN EXPRESSIVE WORKS Pratheepan Gulasekaram* Abstract: Artists and other creators of expressive works often include trademarks and trademarked products as part of their works. They do so for a number of reasons, including lighthearted humor, critical cultural commentary, parody, or even simply to shock. In instances where such use is both unauthorized by and perceived as disparaging to the mark owner or the trademarked product, owners have attempted to sue under trademark law to enjoin the expressive use. This Article argues that, under a proper analysis of trademark law, precedent, and the free expression ideal enshrined in the First Amendment, mark owners should rarely, if ever, prevail in such actions. This Article evaluates the current state of the law, criticizing its inconsistencies and equivocations, and suggests that the correct analytical framework for these disputes must protect the public, creative nature of trademarks and their cultural meaning.