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Eastman & Smith IP Attorney Discusses the Conflict Between Protecting Trademarks and First Amendment Rights

5/10/21

Carrie A. Johnson, a member of Eastman & Smith, was interviewed by Bloomberg Law News for its article regarding the settlement of a lawsuit involving Nike and MSCHF (“Lil Nas X, Nike Deal Ducks Tension Between Speech, Trademark”). The case presented legal questions regarding where a trademark owner’s rights end and free speech rights begin. 

According to Ms. Johnson, cases involving trademarks and the First Amendment often are not decided by a judge or jury, which leads to a lack of consistent legal precedent.  The outcome of decided cases may vary depending on how the judge interprets the First Amendment as well as any parodies involved.  For some predictability, Ms. Johnson says, “hopefully in the future one of these cases will go the whole nine yards.” 

Protecting brands is the heart of Ms. Johnson’s practice.  She concentrates in the areas of trademark, unfair competition, advertising and copyright law.  Her experience includes representing defendants in a right of publicity and trademark infringement suit brought by civil rights icon over naming of Grammy nominated song.