6 The Lanham Act, 7 the federal trademark statute, creates causes of action for trademark infringement and trademark dilution. VIP Products LLC, 5 the Supreme Court added to this trend by misconstruing the proper scope of the statutory exclusion from dilution liability for noncommercial uses of a mark.Ī trademark is a brand name, logo, “trade dress” (that is, a product’s packaging or general appearance), or anything else that indicates a product’s source (i.e., that a given product comes from a given producer). Brands - and the names, slogans, and logos they use to promote themselves - are “ubiquitous, embedded in every aspect of our lives and relationships.” 1 Given their omnipresence, it is no surprise that others use their trademarks for “lighthearted humor, critical cultural commentary, parody, or even simply to shock.” 2 Nevertheless, over the last few decades, trademark owners’ rights have expanded significantly, 3 giving owners an increasing ability to suppress speech they do not like.
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