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In 1979, the United States Supreme Court decided Friedman v. Rogers, a case involving a First Amendment challenge to a Texas statute that prohibited optometrists from practicing under an assumed trade name. Although an important case, Friedman certainly is not one of the major milestones of First Amendment jurisprudence. Prior Supreme Court decisions established that although commercial speech is protected by the First Amendment, government may regulate speech to prevent deception or confusion. Because a majority in Friedman found a possibility of deception, the Court held that Texas could constitutionally prohibit the use of a trade name. Friedman becomes much more interesting if one considers what the Court is saying about trade emblems. The Court did not simply find that the particular trade name used by the optometrist was misleading. Instead, it held that all trade names have an inherent capacity to deceive. Texas could therefore enact a blanket ban on all trade names without having to demonstrate whether a particular name might be misleading.


Article was originally published in v. 76, no. 1 (1997) of Nebraska Law Review which was made available through HeinOnline:

Original Publication Information

Cross, John T. "Language and the Law: The Special Role of Trademarks, Trade Names, and Other Trade Emblems." Nebraska Law Review, vol. 76, no. 1, 1997, p. 95-154.