Table of Contents

Trademark Law and Theory

Trademark Law and Theory

A Handbook of Contemporary Research

Research Handbooks in Intellectual Property series

Edited by Graeme B. Dinwoodie and Mark D. Janis

This important research Handbook brings together a set of illuminating works by the field’s leading scholars to comprise one of the broadest and most far-reaching overviews of trademark law issues. Organized around three areas of inquiry, the book starts by offering a rich variety of methodological perspectives on trademark law. Reflecting the multifaceted nature of contemporary trademarks, contributors have drawn from law and economics, political science, semiotic theory, and history. The Handbook goes on to survey trademark law’s international landscape, addressing indigenous cultural property, human rights issues, the free movement of goods, and the role of substantive harmonization. It concludes with a series of forward-looking perspectives, which focus on trademark law’s intersection with the laws of advertising and free speech, copyright law, cyberspace regulation, and design protection.

Chapter 11: Truth and advertising: the Lanham Act and commercial speech doctrine

Rebecca Tushnet

Subjects: law - academic, intellectual property law


10 Reconciling trademark rights and expressive values: how to stop worrying and learn to love ambiguity Rochelle Cooper Dreyfuss* I’m a Barbie girl, in my Barbie world Life is plastic, it’s fantastic . . .1 2 When I campaign alone, I’m approachable. Women talk to me, complain, but when I’m with Ted I’m a Barbie doll.3 * Pauline Newman Professor of Law, New York University School of Law. I would like to thank Jesse Dyer, NYU Class of 2008, for his superb research assistance and the Filomen and D’Agostino and Max E. Greenberg Research Fund for its financial support. This chapter was shaped, in part, by the national responses I received in my capacity as Trademark Reporter for the Association Littéraire et Artistique Internationale (ALAI) Study Session on Copyright & Freedom of Expression (Barcelona 2006). 1 AQUA, Barbie Girl, on AQUARIUM (MCA Records 1997). 2 The Distorted Barbie: X-files Barbie, (“What about all those aspects of our society that are not represented by Barbie? Let’s open up the closet doors and let out the repressed real-world Barbies; Barbie’s extended family of disowned and inbred rejects; politically correct Barbies that celebrate the ignored and disenfranchised.”). 3 MARCIA CHELLIS, THE JOAN KENNEDY STORY: LIVING WITH THE KENNEDYS 261 262 Trademark law and theory The waitress rallies quickly. “I’m Barbie. No last name . . . I sign it like this, with a little trademark sign after it.” She picks up Alice’s ballpoint pen and writes a carefully looped, upward slanting “Barbie TM.”4 Trademarks and free...

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