Trademarks and the Constitution

These are two topics of interest to me, but they are rarely yoked together.  Pam Karlan, though, does so in a terrific essay called “Constitutional Law as Trademark,” which is at 43 U.C. Davis L. Rev. 385 (2009).

Karlan starts by discussing three established trademark doctrines:  (1) genericism, (2) confusion; and (3) tarnishment. Genericism refers to a mark that becomes synonymous with the type of good that it marks (e.g., aspirin) and loses its distinctiveness.  Confusion refers to the fact that a mark owner may enjoin the use of a similar mark that is likely to cause consumer confusion.  And tarnishment refers to a mark owner’s power to enjoin the use of a similar mark that creates unwholesome associations harmful to the brand.

First, Karlan argues that originalism should be understood as a generic term because it “has become a blanket term describing constitutional interpretation, rather than a distinctive form of a generic practice.” This is largely true, given that Jack Balkin now says that he is an originalist and reaches totally different results from other originalists (not to mention the disagreements among conservative originalists about what they are doing).

Second, she says that the debate over the meaning of Brown in Parents Involved involves confusion because “the Chief Justice and Justice Thomas were engaged in confusing those members of the public who consume their opinions over the provenance or source of their arguments.  They were claiming to be the successors in interest to the lawyers from the NAACP Legal Defense Fund who ‘made’ Brown.”  Now this is more debatable, of course, but her point is that if you think Brown was an anti-caste opinion and not an anti-classification opinion, then these efforts to “confuse” people about Brown must be rebutted.

Finally, Karlan argues that the debate over same-sex marriage is an example of tarnishment.  Opponents of that reform are claiming that “marriage” would be devalued if the definition is changed.  She then says “trademark scholars have expressed skepticism about permitting tarnishment claims because of the threats to free expression, particularly in cases that involve noncommercial uses of a mark, so too, should one view this tarnishment-of-marriage skeptically.”  This last point is true but incomplete– you’d be hard-pressed to find courts that rejected tarnishment claims on First Amendment grounds (the non-commercial proviso is a bit a red herring, since trademark law does not apply to a commercial use).  The tarnishment analogy is a good one, but I think it leads to the opposite conclusion (at least until people no longer feel that permitting same-sex marriage is tarnishment).

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