First Amendment Bars Many Lanham Act Claims Concerning Artistic Uses of Trademarks

– New York Law Journal

When Andy Warhol created his iconic "Campbell's Soup Cans" and "Brillo Boxes" works in the 1960s, it was rare for brand owners to assert Lanham Act claims over non-commercial uses of trademarks in artistic works. The climate has changed dramatically since then, as brand owners have become fiercely protective of their valuable trademarks, often seeking to stop any unauthorized use no matter how trivial or fleeting. The motivations for zealous enforcement of trademark rights include: establishing that a plaintiff's mark is "strong" through proactive "policing"; avoiding equitable defenses such as laches and acquiescence; and building a reputation of aggressive enforcement aimed at discouraging encroachment by competitors.

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