Also known as: product marks · trademark
Written by attorneys · grounded in primary & secondary sources — see below
A mark placed on goods to identify their source and distinguish them from competing products.
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Premier Manufacturing sought to register a product mark containing a reclaimed slur for its line of workwear. The trademark office refused registration on disparagement grounds. Premier sued, claiming the denial violated its First Amendment rights. The court held that the product mark constituted private speech and struck down the refusal as unconstitutional viewpoint discrimination.
Pulse Media sold apparel bearing its product mark through an interactive website accessible in Pennsylvania. Zippo Dot Com challenged personal jurisdiction after Pulse Media sued for infringement. The court applied the sliding-scale test and found that the volume of sales and website interactivity supported jurisdiction over the out-of-state defendant.
Portia Price licensed her product mark for use on dairy products under a contract with Dairy Queen. When a dispute arose over quality standards, Price sued for breach and trademark infringement. Dairy Queen demanded a jury trial. The court held that the claim for damages entitled the parties to a jury on the legal issues.
Qualitex Co. used a distinctive green-gold color on its dry-cleaning press pads and sought to register the color as a product mark. Jacobson Products began selling pads in the same color. Qualitex sued for infringement. The Supreme Court held that a color could qualify for trademark protection when it identifies source and is not functional.
Pierre Poulin operated a franchise using the Burger King product mark in Michigan. After a contract dispute, Burger King sued in Florida. Poulin moved to dismiss for lack of personal jurisdiction. The Court held that the franchise agreement and ongoing contacts with the Florida franchisor created sufficient minimum contacts to support jurisdiction.
Philip Powell formed a band and applied to register its name as a product mark for music merchandise. The office denied registration under the disparagement bar. Powell sued, alleging viewpoint discrimination. The Court ruled that the product mark was private speech and the denial violated the First Amendment.
A product mark constitutes private speech rather than government speech. Denying registration because the mark is disparaging imposes a viewpoint-based restriction that triggers strict scrutiny and is unconstitutional.
A product mark identifies and distinguishes goods sold in commerce from those of competitors. It is used directly on or in connection with tangible products rather than services.
No. The government may not condition registration on agreement with a preferred viewpoint or suppress a product mark because it disparages a group or idea. Such a denial constitutes unconstitutional viewpoint discrimination.
…State); Trade-Mark Cases , 100 U. S. 82 (1879) (Congress cannot regulate internal commerce and thus may not establish national trademark registration). In United States v. E. C. Knight Co. , 156 U. S. 1 (1895), this Court held that mere attempts to monopolize the manufacture of sugar could not be regulated pursuant to the…