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Home > School of Law > Student > Law Review > Vol. > Iss. 1 (2026)

 

Western New England Law Review

Abstract

Legitimate criticism of corporate actions or rights creates a free speech dilemma. When speech implicates or even indirectly relates to a trademark, costly litigation can arise where a plaintiff trademark holder is positioned to, or even obliged to, bury a defendant with numerous attendant claims only tangentially related to substantive trademark issues. If those claims are well-pled, the trademark holder succeeds in defeating constitutional speech rights unless the defendant mounts First Amendment defenses against the attendant claims at great cost.

Where a defendant’s speech—trademark or otherwise—is of public value, such lawsuits have been termed strategic lawsuits against public participation (SLAPPs). Recognizing the public interest of avoiding frivolous litigation on protected speech, many states, including Massachusetts, have enacted anti-SLAPP laws, providing a mechanism for a defendant to dismiss a claim related to protected speech at the pleadings with a mandatory award of attorney’s fees as deterrent. However, for commercially involved parties such as many trademark defendants, there is a catch. Current uniform legislation enacted in fifteen states and introduced in six more, in addition to some independent state legislation, excepts from its scope commercial speech significantly or entirely, thus failing to provide a mechanism to dismiss frivolous claims which are in the purview of protected First Amendment rights. This leaves oft-commercially interested trademark defendants to drown in the uncertain waters of the First Amendment commercial speech doctrine should they defend their right to public discourse. Even further, Federal Circuit courts have had mixed reactions to such anti-SLAPP laws, leaving trademark litigants in an unpredictable position—especially given that most trademark litigation occurs in federal courts. This Note argues that new uniform legislation providing anti-SLAPP protections which adequately encompass trademark litigants is needed,  optimally at the federal level. Proposed is a novel two-level scope of protection scheme, incorporating Massachusetts’ innovative anti-SLAPP measures. This approach affords commercial parties protection for petition speech activities, while affording non-commercial parties broader protection for speech on matters of public interest. Excepted from this scope are substantive, use-based trademark infringement and dilution claims. This scheme is coupled with proposed standards of judgment which balance commercial petition rights against the bona fide business interests of trademark holders, thereby defining an ecosystem where frivolous trademark claims are deterred against publicly valuable speech.

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