The First Amendment in Trademark Law after Vidal v. Elster

FedSoc Forums

In Vidal v. Elster (the “Trump Too Small” case), the Supreme Court unanimously upheld a federal limitation on registering trademarks that include other people’s names. All the Justices agreed that, though the limitation was content-based, it didn’t need to be judged under strict scrutiny. But behind this unanimity was a major rift about whether the Court should decide these matters by focusing on history and tradition, or should instead build on more recent precedents such as those dealing with “limited public forums.” Which is the better approach – and which is the one most likely to gain majority support in the future?
Featuring:
Prof. Barbara Lauriat, Associate Professor of Law & Dean’s Scholar in Intellectual Property, Texas Tech University School of Law
Prof. Lisa Ramsey, Professor of Law, University of San Diego School of Law
Prof. Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law
Moderator: Prof. Zvi Rosen, Assistant Professor, Southern Illinois University School of Law