The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
[T]he Fourth Circuit comes close to holding, as several other circuits have done, that the use of a trademark for the purpose of non-commercial discussion of public issues is beyond the reach of the trademark laws. The court's discussion of this issue, as well of the danger to First Amendment rights of expanding the trademark laws into non-commercial terrain, will be cited for years to come. Similarly, the court recognizes the need to construe the "likelihood of confusion" requirement narrowly when critical expression is at issue, and equally important for purposes of trademark doctrine, the court ultimately finds no likelihood of confusion without any slavish analysis of the "likelihood of confusion" factors. The only disappointing part of the opinion is its treatment of the NAACP's dilution claim, although, in the end, the panel roundly dismissed that claim based on a solid analysis of the fair use and non-commercial use defenses.