Document Type
Brief
Publication Date
2-23-2023
Abstract
Amici are 30 law professors who teach and write extensively about trademark law and other intellectual property law subjects. Amici have no personal interest in this case. Amici’s sole interest is in the orderly development of trademark law in a way that serves the public interest, in part by ensuring the proper balance between legitimate trademark interests and strong First Amendment speech interests.<\p>
Trademark law has expanded dramatically in recent decades, opening the door to claims against parties that are primarily selling speech. Those claims would have been inconceivable when the Lanham Act was passed.<\p>
Early courts facing these expanded claims in the 1970s and 1980s tried to do what the government’s brief now suggests and simply apply the new, judicially created multifactor likelihood-of-confusion tests each circuit created in the middle of the twentieth century. The result was a disaster. Many courts declared obvious parodies and commentary illegal. Even the courts that properly protected speech about trademarks did so by mutating or ignoring their own likelihood-of-confusion test. And the fact-specific nature of the inquiry required expensive surveys and made summary judgment difficult, leading numerous defendants with meritorious cases to censor their speech rather than face the cost and uncertainty of prolonged litigation.
Recommended Citation
Perzanowski, Aaron, "Jack Daniel's Properties, Inc. v. VIP Products LLC: Brief of Amici Curiae 30 Trademark Law Professors in Support of Respondent" (2023). Appellate Briefs. 88.
https://repository.law.umich.edu/briefs/88
Comments
Amicus: Buccafusc, Professor Christopher; Carroll, Professor Michael W.; Catanzaro, Professor Zachary L.; Dogan, Professor Stacey; Fagundes, Professor Dave; Farley, Professor Christine Haight; Fromer, Professor Jeanne C.; Gallagher, Professor William T.; Gibson, Professor James; Gilden, Professor Andrew; Grimmelman, Professor James; Grynberg, Professor Michael; Heald, Professor Paul; Heymann, Professor Laura A.; Laser, Professor Christa J.; Lemley, Professor Mark A.; Levine, Professor David S.; Liebesman, Professor Yvette; Mazzurco, Professor Sari; McGeveran, Professor William; McKenna, Professor Mark P.; Miller, Professor Joseph Scott; Nathenson, Professor Ira Steven; Ochoa, Professor Tyler T.; Olson, Professor David S.; Perzanowski, Professor Aaron; Rosenblatt, Professor Betsy; Samuelson, Professor Pamela; Sandeen, Professor Sharon K.; Silbey, Professor Jessica