Trademark misuse at the AIPLA
Down at the bottom of this post is a PDF of my paper, included in the CLE materials for a panel on which I was a participant at the American Intellectual Property Law Association’s annual meeting on October 24, 2013. The panel was called “Trademarks, Goodwill and Free Speech: Does the First Amendment Give You the Right to Create a Trademark and Associated Goodwill, and Where Does That Right End?” My scribble is called “The Misuse of Trademarks to Control Free Expression.” In other words, regular readers of this blog will find little new there, except for the footnotes.
The program was moderated by my buddy Paul Alan Levy of Public Citizen, and the other participants were Christine Haight Farley from American University’s Washington College of Law, who gave an incisive overview of the theoretical and doctrinal issues, and Tony Zeuli of Merchant and Gould, PC, in Minneapolis, who spoke broadly as well but particularly about his successful defense against the lawsuit brought by Michael Jordan [UPDATE: Uh oh] against the Chicago-area Jewel / Osco food store chain based on various theories arising from that distinctly modern sin, “false endorsement.”
Me? I ranted, but I was certainly listened to. (The core of my rant was, forget commercial speech vel non and the First Amendment — this nonsense should stop at the door of the Lanham Act itself.) The paper below doesn’t have all that much to do with what I said. A little bit closer, perhaps, is this PowerPoint slide presentation.
Um, let me rephrase.
Okay, so patent lawyers may not be, quite so sparkling, beautiful and enamored of the sound of our own voices as we fashion lawyers,” by which I mean lawyers who like IP but have trouble with math. What they are, however, is smart, intellectually engaged and, with respect to the issue we were discussing, evidently unbiased.
Oh, the paper — here:
Anyway, my point is that this panel could never have taken place at “The INTA.” The presentations by my colleagues were thoughtful and thorough; the questions from the audience were lively, intellectual and frank; and those in attendance seemed very much to be listening and thinking about issues in ways they might not have done previously. In short, again, this was quite not what you get at The INTA. Which was, of course, why I could have been invited to participate.
So thanks, AIPLA! And particularly thanks to Daniel Feigelson, who put the panel together and who is, in fact — like everyone I met at the AIPLA — quite a lot of fun, notwithstanding the math thing.