Seven years can see the Supreme Court travel a long way. In 1935 the Court invalidated the National Industrial Recovery Act, a centerpiece of the New Deal’s efforts to combat the Depression. This was but one of a series of cases in which the Court sought to entrench old notions about government’s role in regulating the nation’s economy. Seven years later, the Court (seven of whose members had been appointed since 1935), decided Wickard v. Filburn, upholding the Agricultural Adjustment Act’s penalty imposed on a farmer who grew wheat for consumption on his own farm. In seven years, the Court had gone from close judicial oversight of Congress’s decisions about the national economy to something close to complete deference.
A description of a typical trademark infringement suit begins with the assumption that acquiring a desired product in the marketplace involves a search process, which incurs costs in terms of time spent, cognitive attention, and other resources. Consumers use trademarks as heuristics to reduce the amount of these costs. The trademark Levi’s, for example, allows a consumer to quickly find the jeans she knows fit her well without having to try on multiple pairs each time she goes to the department store. (This, of course, assumes that Levi Strauss & Company maintains the same design for its jeans over time, which trademark law does not obligate it to do.) Trademark law uses the concept of “consumer confusion” to describe a scenario in which the ability of a trademark to function as a shorthand is called into question because more than one producer is using the mark to brand its product. Thus, the theory goes, if we eliminate uses of trademarks that lead to “confusion” among consumers—the unauthorized Levi’s jeans, for example—we will stave off “search costs.”
Professor Mark McKenna’s article “A Consumer Decision-Making Theory of Trademark Law” brings welcome attention to what has become an increasingly unhelpful vocabulary. As he notes, the terms “confusion” and “search costs” are not always useful ways of characterizing the harms that result from trademark infringement. Consider, for example, the typical trademark infringement case, in which the defendant’s use of the plaintiff’s trademark misled the consumer into buying the impersonator’s product in lieu of the trademark holder’s product. Characterizing the defendant’s actions in this scenario as unfair competition is uncontroversial because the defendant took business away from the trademark owner through duplicity rather than through persuasion. But trademark law doesn’t actually tell a nuanced story about the nature of the consumer’s harm. Perhaps the consumer was ultimately pleased with her purchase, despite the fact that it was not what she initially intended to buy. Perhaps it is enough that she was provided with false information, regardless of her ultimate assessment of the product. Perhaps she will henceforth distrust the Levi’s trademark and instead try on several pairs of jeans to find the fit she likes or give up and turn to a different type of clothing altogether. Trademark law typically doesn’t delve too deeply into these questions, using “confusion” and “search costs” to characterize the various possibilities instead. A better sense of the harm that trademark law is supposed to remedy (and why it constitutes a harm) may not be crucial in a fake Levi’s scenario, but it becomes increasingly important the more the fact pattern moves away from the prototypical to more expansive theories of infringement.
As we enter the last phase of an election cycle marked by a huge and growing amount of money in politics, it is time to confront a central tension in the Supreme Court’s interpretation of the First Amendment. In the well-known 2010 case, Citizens United v. Federal Election Commission, the Court reaffirmed that giving and spending money in connection with elections constitute protected “speech” under the First Amendment and thus that any restrictions on these activities can only survive if they are narrowly tailored to serving a compelling governmental interest. A bare five months later, another important case of the same term, Holder v. Humanitarian Law Project,considered whether the government may ban the provision of “material support” to terrorist groups and held that it may. While some “material support” – expert advice and training — raised First Amendment concerns, the Court did not consider whether giving money to terrorists was protected “speech” under the First Amendment but implied that it was not. Thus, a contradiction resides in the heart of the Court’s interpretation of the First Amendment.Citizens United tells us that giving money to Group X is “speech” under the First Amendment, while Humanitarian Law Project tells us that giving money to Group Y is not “speech” under the First Amendment. As we reflect on this election season in which lots of “material support” to parties and candidates is being passed around, this is an important contradiction to resolve.