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Trademark Bill Threatens Free Expression


A bill that would drop express protection for “noncommercial use” of a trademark and would weaken the protections for those who use trademarks in news commentary will be considered by the Senate Judiciary Committee on Thursday. The legislation has already passed the House.

These changes in the law appear to be largely collateral damage in a bill intended to address the “dilution” provisions of trademark law. The bill, known as H.R. 683, the Trademark Dilution Revision Act, is otherwise unobjectionable from the perspective of an authors’ group.


One of your senators (two, if you’re from Wisconsin), sits on the Judiciary Committee. We’d like you to contact that senator and urge him or her to make a small, important change to H.R. 683, revising section 43(c)(3) of the bill so that it reads “43(c)(3) EXCLUSIONS- The following shall not be actionable under this section:” and reinstating the existing noncommercial exclusion from liability by simply adding “43(c)(3)(D) Noncommercial use of a mark.”

Please contact your senator before Thursday, February 16. Contact information for Senate Judiciary Committee members is at the bottom of this e-mail.


Trademarks, including business names, brands, and slogans, are unavoidable and proliferating in daily life. Writers of fiction and nonfiction inevitably incorporate trademarks into their work, sometimes to comment on the particular business using the trademark, but frequently the use is merely incidental to the nonfiction or fiction writer’s story (“Tom went to a McDonald’s, had a Coke, and waited for the Harley to arrive.”).

Just as fair use provisions of copyright law permit writers to make certain uses of copyrighted works in their own works, so do fair use and related provisions of trademark law permit writers to use trademarks in their works. One of the important protections for writers using others’ trademarks is section 43(c)(4)(B) of the Lanham Act, which excludes noncommercial and news reporting uses from several types of liability under trademark law. The new law would weaken these protections, exposing writers to greater potential liability for their use of trademarks.

This would needlessly chill expression. The legitimate changes to the dilution provisions of trademark law can be made without changing the exclusions from liability contained in the current law.


If you contact your representative, please let us know. Simply e-mail us at


Arlen Specter, R-PA Web Form: Phone: (202) 224-4254

Orrin G. Hatch, R-UT Web Form: Phone: (202) 224-5251

Patrick J. Leahy, D-VT Email: Phone: (202) 224-4242

Charles E. Grassley, R-IA Web Form: Phone: (202) 224-3744

Edward M. Kennedy, D-MA Web Form: Phone: (202) 224-4543

Jon Kyl R-AZ Web Form: Phone: (202) 224-4521

Joseph R. Biden, Jr., D-DE Web Form: Phone: (202) 224-5042

Mike DeWine R-OH Web Form: Phone: (202) 224-2315

Herbert Kohl. D-WI Web Form: Phone: (202) 224-5653

Jeff Sessions, R-AL Web Form: Phone: (202) 224-4124

Dianne Feinstein, D-CA Web Form: Phone: (202) 224-6521

Lindsey Graham, R-SC Web Form: Phone: (202) 224-5972

Russell D. Feingold, D-WI Email: Phone: (202) 224-5323

John Cornyn, R-TX Web Form: Phone: (202) 224-2934

Charles E. Schumer, D-NY Web Form: Phone: (202) 224-6542

Sam Brownback, R-KS Web Form: Phone: (202) 224-6521

Richard J. Durbin, D-IL Web Form: Phone: (202) 224-2152

Tom Coburn, R-OK Web Form: Phone: (202) 224-5754