Rethinking trademark fair use

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52 Scopus citations


The ever-expanding scope and strength of trademark rights has caused justifiable fears of a threat to free expression. In response, concerned scholars generally focus on perfecting the substance of legal rules that balance free speech against other goals. This effort is misplaced because most cases raising these issues in recent years ended in judicial decisions that favored speech. The real danger arises from the procedural structure of trademark law's various "fair use" doctrines, which generate excessive ambiguity and prolong litigation before ever reaching such positive outcomes. Resulting administrative costs discourage speakers from using trademarks expressively in the first place, creating a classic chilling effect. This Article analyzes problems with trademark fair use comprehensively and recommends pragmatic reform. Instead of adding more bells and whistles to already complex law, we should craft simpler affirmative defenses that reduce uncertainty and allow for quick adjudication.

Original languageEnglish (US)
Pages (from-to)49-124
Number of pages76
JournalIowa Law Review
Issue number1
StatePublished - Nov 2008


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