Brand Restrictions – The Right Not to Speak and the Right to Listen
Trademark attorney and Chair of the International Trademark Association (INTA) Emerging Issues Committee Paul Kilmer published an article on the tension between the "right to speak" and the "right to listen": the right of companies to say what they want about their products (and the government's right to compel them to deliver a specific message) and the right of consumers to receive fair and accurate information about those products. Mr. Kilmer reviews two U.S. Supreme Court cases that looked at the right of the speaker, including whether a company could refuse to deliver the message the government wanted it to deliver. He then looks at the right of the listener by explaining when the government may have a legitimate interest in protecting consumers from receiving certain types of messages (i.e., a company can't just lie about its products). The author then discusses the application of that idea in trademark law and unfair competition before coming back to those two court cases and proposing modifications to the test, again emphasizing that corporate speech issues must balance the rights of speakers and listeners.