Trademark Officials Must Distinguish Between Irony and Offens

Author(s): 
Publication Type: 
Other Writing
Publication Date: 
May 4, 2016

Years ago, Justice Frankfurter observed, “the protection of trademarks is the law's recognition of the psychological function of symbols,” noting, further, “if it is true that we live by symbols, it is no less true that we purchase goods by them.”

As a college student, one of the most powerful purchases I ever made was of a T-shirt created by the AIDS activist group ACT UP, which contained a triangle marked with the slogan SILENCE=DEATH. I wore that shirt until it was tattered beyond repair, and almost 25 years later, it still goes down as one of the best purchases this trademark professor ever made. Today, the pink triangle is one of the most popular international symbols of gay pride, second in power only to the rainbow flag.

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