Expressive Genericity: Trademarks as Language in the Pepsi Generation

Abstract

This Article attempts to develop a framework for allocating rights in words. After quickly recounting how the changing legal climate has tended to grant trademark owners ever greater control over their marks, Part I explains why these recently developed rules imperfectly measure, and therefore provide inadequate access to, the expressive dimension of trademarks. Part II takes a hard look at the connection between words and communication. It scrutinizes one example of the Court's handiwork in this area, and then draws upon the linguistic literature to show that discourse is indeed inhibited as control over words is lost. This Part suggests that since intellectual property law represents the single most coherent attempt to analyze rights in words, its commerce-oriented doctrines can be used as models upon which to base more expressively-directed safeguards. These new principles would owe their justification to first amendment jurisprudence, and would supplement the analytical framework that has been its progeny. To demonstrate how this suggestion would work, the Article ends with the construction of a doctrine of "expressive genericity," which protects access to the marketplace of ideas in a manner similar to the way that trademark's genericity defense has protected the marketplace of commerce.

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