The Social Significance of Modern Trademarks: Authorizing the Appropriation of Marks as Source Identifiers for Expressive Works

Yaquinto’s Note develops an argument in favor of authorizing expressive trademark use based on the relationship between the social significance of modern trademarks and expressive works. Modern marks possess immense communicative power and transmit an array of information, much of which is derived from characteristics of the trademark owner as well as any underlying activities associated with that owner. Those activities include any products, services, advertisements, sponsorships, charitable efforts, or scandals that are connected to the mark or its owner.

The discussion proceeds in three parts. Part I contextualizes the social significance of modern marks by outlining their development and evolution. Part II lays out the legal framework for trademark dilution and the statutory exclusions from liability, and covers the relevant limitations on applying the exclusions, including the commercial speech doctrine. Finally, Part III argues in favor of applying the noncommercial use exclusion to expressive trademark use as consistent with congressional intent and the policies served by First Amendment protection for expressive speech. It also provides a framework to easily apply the exclusion.