Faculty Publications


The Battle for Mindshare: The Emerging Consensus that the First Amendment Protects Corporate Criticism and Parody on the Internet

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This article describes the development of trademark liability for engaging in corporate criticism or parody on the Internet, and the emerging judicial consensus that imposing liability on this form of political speech violates the First Amendment rights of Internet users. The article begins by analyzing the expansion of trademark rights from a method of protecting merchants against counterfeiting into a broad-ranging tort against any invasion of consumers' good feelings towards a business or its products. Courts and Congress made this expansion possible by eroding the requirement of commercial competition as a prerequisite to trademark liability, and by crafting sometimes overbroad rules against creating initial interest confusion, establishing negative associations with a trademark, or cybersquatting on a domain name similar to a mark. Fortunately, the federal appellate courts are making it increasingly clear that the First Amendment shields Internet speech devoted to criticizing or making fun of corporations from censorship under trademark law. The author argues that this emerging consensus is consistent with the principal normative justifications for trademark rights as a means of preserving valuable property interests and promoting economic efficiency. Finally, he contends that trademark rights should be restricted to policing commercial competition, rather than non-commercial Internet speech. This limitation is essential if consumers are to preserve their autonomy in light of the pervasive influence of advertising, and their ability to participate fully in a democratic society in light of the considerable power of the business world.