Truth and Advertising: The Lanham Act and Commercial Speech Doctrine

Rebecca Tushnet, Georgetown University

Abstract

The Lanham Act and its state counterparts in trademark and unfair competition law regulate speech in ways inconsistent with the current thrust of Supreme Court’s commercial speech doctrine. The lines between confusing and informative uses of trademarks and between true and false advertising claims are difficult to draw, in ways that in other contexts – particularly libel doctrine – have led courts to impose increasing burdens on plaintiffs and regulators. I will discuss the First Amendment implications of distinguishing truth from falsity in commercial speech, applied to trademark infringement and to other types of false advertising. In addition, on a somewhat different note, I will consider trademark dilution as a consumer protection measure, arguing that even a dilution law limited to classic nonconfusing uses of a famous mark on noncompeting goods is constitutionally deficient.