Mired in Confusion: Nominative Fair Use in Trademark Law and Freedom of Expression

• In Event: ICA Plenary Interactive Paper/Poster Session and Reception
  In Interactive Paper Session: Communication Law and Policy Interactive Poster Session

Abstract

Expanding intellectual property rights are increasingly impinging on the expressive realm. Numerous commentators have noted this disturbing trend across such i.p doctrines as copyright, trademark, and the right of publicity. One flashpoint of the trademark-free expression clash is the nominative fair use doctrine in trademark law. This paper explores the rise of the nominative fair use doctrine – including the variations on the doctrine that exist in different federal circuits. The paper then analyzes an arguably better approach, the Rogers test, recently applied in a nominative scenario by the U.S. Court of Appeals for the Eleventh Circuit. The paper argues that Rogers is a superior methodology in nominative cases since it creates a more speech-protective barrier to liability and protects defendants even in the face of some degree of likely confusion.

Author

• Matthew D. Bunker, U of Alabama