Justin Linder

Trademark Paper Topic

My paper will concentrate on the interaction between the Federal Trademark Dilution Act and the First Amendment.

Barriers to the tradition flow of information and ideas have been erected by a media that is increasingly consolidated. Although large corporations have always been in charge of print, television, and radio media, the number of players today is small by historic standards. Moreover, many media outlets are owned by huge conglomerates like Disney and General Electric that have an interest in filtering information received by the public. Additionally, as newsrooms become more profit-oriented, the interests of advertisers have begun to rival the public interest. Important information about the practices of the corporations that feed us, clothe us, and inform us is becoming harder to obtain.

Through the years the law has more or less bestowed personhood upon corporations, enabling them to speak with the same voice in the public sphere as a person, but many times louder. If a corporation is, legally, a person, its trademark represents its public personification as well as its reputation. Through the quality of its products and through advertising, the corporation confers value to its trademark with the aim imbuing the mark with positive images and associations.

With the passage of the Federal Trademark Dilution Act, Congress gave corporationsan additional tool to ensure that their chosen personification continues to exude the positive atmospherics so expertly crafted by Madison Avenue regardless of the sweatshops it runs or environmental damage it causes. Those who would attempt to harm the corporation’s reputation through the tarnishment or dilution of its trademark- for any reason- may be enjoined or even subjected to treble damages if the dilution occurs as a result of a commercial transaction.

Following are some of the topics I would like to discuss in my paper:

1)Corporations as Public Figures

Corporations with famous marks are analogous to public figures because they voluntarily inject themselves into the public sphere and are in position to rebut negative accusations through media advertising and public relations efforts.

2) Trademark as a Corporation’s Persona

The trademark is the large corporation’s public face. As such, the most effective way to critique the corporation is to disparage its trademark. Insulting its CEO is no where near as effective in conveying a particular message about a corporation’s practices.

3)Commercial Parodies are Important Tools to Effectively Convey Corporate Criticism and Deserve Protection

Because traditional media channels are hostile to corporate criticism, critics of corporate practices must proceed through alternative channels. Visibility and saturation are the most effective advertising techniques. The more billboards, t-shirts, and commercials with your trademark and your message the better. A simple message is also an advertising must- “Just do it!,” “We report, You decide”

With the inability to spread his message through other channels, a critic of a corporation’s practices takes the lessons he’s learned from corporate advertising. Saturation and simplicity is key. A message can be placed on a homemade tee-shirt or on a homemade poster in place of a billboard but one tee-shirt is not going to get the message into the market of ideas.

How does the social critic confront the public with his ideas? Merchandising! By selling tee-shirts printed with trademark parodies to like-minded people the corporate criticism is viewed by people on the bus or in the supermarket. Attracted by something that looks like the Fox News logo, a stranger glances at a tee-shirt only to find that instead of “Fox News- We report, You decide” the shirt reads “Faux News- We Distort, You Abide.” The symbol cultivated by Fox to convey integrity and objectivity has been tarnished. But there is nothing false about the criticism. After seeing such a shirt a few times, the stranger may think twice about the quality of the infotainment being hawked by Billy O’Reilly. She may even be tempted to inquire further into what inspired the tee-shirt’s criticism.

4)Limits to Disparagement of a Trademark

The dilution standard is too strict and infringes on First Amendment protections. Because a corporation is a public figure, something similar to theNew York Times v. Sullivan standard appears to be more appropriate. I will explore how such a standard could be applied in the dilution context and what kind of protection, if any, satire deserves.