Perspectives

Trademark-related quotes, opinions and observations from around the globe

This case will affect policy no matter what the decision is. Even if the circuit decides there isn’t a First Amendment right, the policy issue will have been looked at in a more sophisticated way. The previous argument had been made on a precedent [re McGinley] that may or may not have been soundly based when it was made in 1981, but there is now a very strong argument that it is not even applicable in light of changes to trademark law since then. So in a world where so many substantive rights depend on trademark registration, it’s not enough merely to say, ‘It is well established that there is no First Amendment issue.’ It has got to be addressed on a substantive level.

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