Also known as: true trademarks · trademark
Written by attorneys · grounded in primary & secondary sources — see below
A commercial identifier that embodies the owner's private expression and is not attributable to the government.
Select any source to read its text and confirm it supports the definition.
Thaddeus Tran sought to register a mark for his Asian-American rock band that some found offensive. The examiner refused registration on the ground that the mark disparaged a group. Because the mark constituted Tran's own private expression rather than government speech, the refusal could not stand under the First Amendment.
Tyler Taylor operated a chain of ice-cream shops under a license from a national franchisor. When the franchisor sued for unpaid royalties, Taylor demanded a jury trial on the trademark issues. The court treated the licensed marks as embodying the registrant's private expression whose scope and validity presented factual questions for the jury.
Tristan Thompson, a Michigan franchisee, stopped paying fees to a Florida-based franchisor. The franchisor sued in Florida federal court. The court found that Thompson's repeated contacts with the franchisor's Florida headquarters established personal jurisdiction over claims involving the licensed marks as private expression.
TechVista Solutions, a Pennsylvania company, used a domain name incorporating a rival's mark to sell related products online. The rival sued in Pennsylvania. The court applied a sliding-scale test based on the level of commercial interactivity of the website to decide jurisdiction over claims involving the rival's private-expression mark.
Tabitha Taylor applied to register a mark containing a term some viewed as derogatory toward her own ethnic group. The PTO refused registration. The Supreme Court held that the refusal constituted impermissible viewpoint discrimination against private speech and struck down the statutory bar.
Titan Industries marketed boat hulls whose design copied a competitor's unpatented configuration. The competitor claimed the design functioned as a source identifier embodying private expression. The Court held that federal patent law preempted any state-law attempt to protect the design through trademark once the patent term expired.
Because trademarks are private expression, the government may not deny registration based on disapproval of the owner's viewpoint. Doing so violates the First Amendment.
Yes. Courts examine the defendant's contacts with the forum in connection with the licensed or asserted marks to determine whether jurisdiction exists over claims involving those private rights.
No. Even when the PTO examines or registers a mark, the mark remains the registrant's private speech and does not become government speech.
…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…