Sonia K. Katyal - UCLA Law Review

1650 57 UCLA LAW REVIEW 1601 (2010)
(one that described the use of condoms and contained manufacturer’s information,
and a second entitled, “Plain Talk about Venereal Disease,” which simply
discussed the use of condoms) comprised commercial speech on the grounds
that they were (1) advertisements; (2) that referred to a specific product; and
(3) had a commercial motivation. 225
The Court curiously reached this observation despite its recognition that
the advertisement included discussions that involved far more information than
a simple proposal to engage in a commercial transaction. Since Bolger, courts
have looked to these three elements—an advertisement, reference to a specific
product, coupled with evidence of an economic or promotional intent—in
classifying commercial speech. Elsewhere, however, the Court has stated that if
commercial speech and fully protected speech are “inextricably intertwined,” it
will treat the entire expression as fully protected, noncommercial speech. 226
Based on these observations, most courts consider logos, labels, and
trademarks to enjoy some First Amendment protection, although the level of
protection they enjoy is tethered to the reduced protections enjoyed by commercial
speech. 227
When a word or symbol is used as a trademark to identify and
distinguish the source of a commercial good or service, the expression may be
classified as commercial speech. 228
Lower courts, for example, have relied on
Bolger, noting that common sense dictates that uses of logos should not receive
the highest protection afforded by the First Amendment, given that regulations
on commercial speech are often related to legitimate government objectives. 229
Yet this broad view has meant, at times, that noncommercial expression in both
the narrow category of trademarks, and the broader field of advertising generally,
gets cast as commercial speech, even when the speech plays a multivariate
225. Id. at 66–68.
226. Riley v. Nat’l Fed’n of the Blind, Inc., 487 U.S. 781, 796 (1988). Yet the court has abstained
from applying this rule to situations where noncommercial speech is added on to commercial speech,
observing that “advertising which ‘links a product to a current public debate’ is not afforded the high degree
of protection that noncommercial speech enjoys.” Bd. of Trs. of the State Univ. of N.Y. v. Fox, 492 U.S.
469, 475 (1989) (quoting Bolger, 463 U.S. at 67–68 (quoting Cent. Hudson Gas Elec. v. Pub. Serv.
Comm’n, 447 U.S. 557, 563 n.5 (1980))). Elsewhere, the Court has refused to allow states to treat
noncommercial speech as less valuable than commercial speech. See Metromedia, Inc. v. City of San
Diego, 453 U.S. 490 (1981); City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 424 (1993)
(rejecting a ban on commercial newsracks on the grounds that the distinction between commercial and
noncommercial speech bears no relationship to the city’s interests).
227. See Bad Frog Brewery, Inc. v. N.Y. State Liquor Auth., 134 F.3d 87, 94 (2d Cir. 1998).
228. See Ramsey, supra note 206, at 396 (“Like the use of a trade name, these source-identifying uses
of a trade-mark are pure commercial speech because the ‘purpose is strictly business’ and they ‘are used as
part of a proposal of a commercial transaction.’” (citing Friedman v. Rogers, 440 U.S. 1, 11 (1979))).
229. See Transp. Alternatives, Inc. v. City of New York, 218 F. Supp. 2d 423, 437–38 (S.D.N.Y.
2002) (linking aesthetics and traffic safety as legitimate regulations of commercial signage).