Bill McGeveran, our good friend from University of Minnesota Law School, recently posted on SSRN a new article about the practical and procedural problems associated with trademark fair use and other free-expression-related defenses to a trademark claim. The article, Rethinking Trademark Fair Use, which will appear in the Iowa Law Review at the end of 2008, is an expanded treatment of the issues raised in his Four Free Speech Goals for Trademark Law, which I blogged about back in April. Here's the abstract:

The ever-expanding scope and strength of trademark rights has caused justifiable fears of a threat to free expression. Until now, however, concerned scholars generally focused on perfecting the substance of legal rules that balance free speech against other goals. This effort is misplaced because most cases raising these issues in recent years ended in judicial decisions that favored speech. The real danger arises from the procedural structure of trademark law's various "fair use" doctrines, which generate excessive ambiguity and prolong litigation before ever reaching such positive outcomes. Resulting administrative costs discourage speakers from using trademarks expressively in the first place, creating a classic chilling effect. This Article is the first to analyze these problems with trademark fair use comprehensively and recommend pragmatic reform to address the problems. Instead of adding more bells and whistles to already complex law, we should craft simpler affirmative defenses that reduce uncertainty and allow for quick adjudication. 

The intersection of trademark law and free speech is a fascinating and important topic, and Bill's article is a great contribution to the field. For more information on free-expression-related defenses to trademark claims, see Using the Trademarks of Others.

(Note: Bill McGeveran is a former fellow of the Berkman Center for the Internet & Society, which hosts the CMLP.)