Trademark Disparagement is Public Discourse, Not Commerce

There is a pronounced trend in recent First Amendment cases towards doctrinal homogeneity. This means treating every deployment of words or data (including securities disclosures and product labels) as protected speech, regardless of social function, and then extending the same degree of protection to all protected speech. One sees this in increased protection for commercial speech.

For the most part, the trend is not good either for consumer protection law or for free speech. First Amendment protections have always been most robust where we need them most — individual expressive activities — in part because they were weaker where we need them less — commercial or professional speech. Protections can only remain strong if the doctrine distinguishes protected expression from the functional words and data that are not part of public discourse. See Robert Post and Frederick Schauer.

This week, the Federal Circuit decided to revisit the relationship of the First Amendment to trademark law. It has asked the Patent and Trademark Office to brief the question of whether trademark disparagement policy — the bar on registration of disparaging marks under 15 U.S.C. § 1052(a) — violates the First Amendment.

Some might view this as an extension, or affirmation, of the trend to elevate commercial speech. I don’t see it that way.

Trademark law flies under the First Amendment radar because it is commercial regulation. To the extent that trademark law regulates speech (by granting and protecting exclusive rights to use a brand name or trade dress), it does not tread on public discourse. Rather, it constrains communication whose main function is to foster marketplace transactions.

Disparagement policy does not fit this model. It empowers the PTO to make content-based and viewpoint-based judgments about marks like “Redskins” based not on how these marks function in the marketplace, but on whether the PTO thinks they will offend people. What is being regulated is not the mark’s function in the marketplace — commercial speech — but its impact on public discourse. This kind of bureaucratic sanction (or denial of privilege) for what offends is of core First Amendment concern.

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