The First Amendment: Apparent Immunity from Trademark Infringement?

摘要

When a creator of an expressive work1 incorporates a well-known trademark into the work, what recourse should the trademark owner have for infringement of its mark, if any? At the intersection of trademark infringement under the Lanham Act and the First Amendment, it is likely that the trademark owner's property interest will yield to free expression. However, due to the U.S. Supreme Court's silence on this issue, it is far from clear under what circumstances such use of a trademark in an expressive work and in that work's marketing and promotion should be permissible.