69 B.U. L. Rev. 131 (1989)
Trademarks, Speech, and the Gay Olympics Case; Kravitz, Robert N.

handle is hein.journals/bulr69 and id is 139 raw text is: TRADEMARKS, SPEECH, AND THE GAY OLYMPICS CASEt
ROBERT N. KRAVITZ*
Over the past two decades, defendants in a number of trademark infringe-
ment cases have raised a first amendment defense, arguing that trademark
enforcement impinges on their right to free expression. In a few of these
cases, courts have ruled in favor of the defendants without reaching the first
amendment issue.' Except in rare cases,2 however, courts have consistently
t Copyright 1989 by Robert N. Kravitz.
* Law Clerk to the Hon. Jon 0. Newman, United States Court of Appeals for the
Second Circuit. J.D., Harvard Law School. The author wishes to thank Kathleen
Sullivan, Professor of Law, Harvard Law School, for helpful comments on drafts of
this Article. Ed. This Article received the 1988 Stephen P. Ladas Award for outstand-
ing scholarship in the field of trademark law from the United States Trademark
Association.
I See. e.g., M.B.H. Enterprises v. WOKY, Inc., 633 F.2d 50, 53, 56 (7th Cir. 1980)
(finding for defendant based on fair use defense without considering first amendment
claim); Girl Scouts of the United States v. Personality Posters Mfg. Co., 304 F. Supp.
1228, 1235 (S.D.N.Y. 1969) (refusing to invoke first amendment but warning that at
least one New York court has found posters to be a form of expression which may be
constitutionally protected); University of Notre Dame du Lac v. Twentieth
Century-Fox Film Corp., 22 A.D.2d 452, 457, 256 N.Y.S.2d 301, 306 (denying
plaintiff injunction against challenged use based on theories of unfair competition and
illegal appropriation of trade name), aff'd, 15 N.Y.2d 940, 207 N.E.2d 508, 259
N.Y.S.2d 832 (1965); see also Stop the Olympic Prison v. United States Olympic
Comm., 489 F. Supp. 1112, 1116, 1126 (S.D.N.Y. 1980) (granting plaintiff declaratory
judgment that its use of the word Olympic and the five interlocking rings symbol
drawn behind grey bars was not barred by the Amateur Sports Act but declining to
include first amendment justifications for this decision). But cf. Reddy Communica-
tions, Inc., v. Environmental Action Found., 199 U.S.P.Q. (BNA) 630, 633-34
(D.D.C. 1977) (finding for defendants on trademark grounds but rejecting in dicta
their first amendment defense where alternative avenues for communication exist for
defendant); Christian Science Bd. of Directors v. Evans, 105 N.J. 297, 316, 520 A.2d
1347, 1357 (1987) (holding that the name Christian Science Church is a generic
name and is therefore not protected by trademark law, but stating in dicta that first
amendment is no defense to a plaintiff's valid trademark interests).
2 Only one appellate court has squarely approved a first amendment defense to a
trademark claim. See L.L. Bean, Inc. v. Drake Publishing, 811 F.2d 26 (1st Cir.),
cert. denied, 107 S. Ct. 3254 (1987). The Second Circuit recently ruled the first
amendment concerns were a factor to be considered in deciding whether a trademark
owner has abandoned a trademark, when the trademark is the name of a character
portrayed in radio and television shows and when the character itself is in the public
domain, no longer protected by copyright law. See Silverman v. CBS Inc., - F.2d -
(2d Cir. 1989) (holding that proprietor of trademarks in the names of characters in the
Amos 'n' Andy show has abandoned the trademarks through non-use).
One recent district court opinion, currently pending appeal, also upheld a first
amendment defense to a claim of false advertising under § 43(a) of the Lanham Act,

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