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ON THE CUSP OF COMPETITION AND CONFUSION:
EXAMINING NOMINATIVE FAIR USE IN TODAY'S WORLD OF LOGOS
Kelsey Shaughnessy*
I. Introduction
Brands, through names, logos, slogans, and even designs, are
ubiquitous, contextualizing everyday living, personal relationships
even ourselves.1 Brands use trademarks to capture our attention,
create humor, even adorn us, becoming the tools for living in
contemporary culture.2 As such, it is not surprising that trademarks
J.D. Candidate, Suffolk University Law School, 2026.
1 See SARAH BANET-WEISER, AUTHENTICTM: THE POLITICS OF AMBIVALENCE IN A
BRAND CULTURE 3 (N.Y.U. Press, 2012) (introducing the ever-present nature of
brands in contemporary culture by describing Logorama, a sixteen-minute animated
short film debuted at Cannes Film Festival in 2009 by H5, a French creative
collective). The film replicates Los Angeles, a city entirely immersed in brands,
depicted in a stylized, cartoon-like aesthetic to replicate consumer culture. Id. at 2-
3. Sarah Banet-Weiser juxtaposes Logorama to contemporary culture to
demonstrate how brands are embedded in every aspect of our lives and
relationships. Id. at 3.
2 See Pratheepan Gulasekaram, Policing the Border Between Trademarks and Free
Speech: Protecting Unauthorized Trademark Use in Expressive Works, 80 WASH. L.
REV. 887, 887 (2005) (describing the expressive attributes of trademarks). See also
BANET-WEISER, supra note 1, at 9 (describing how brands are part of culture that
is produced and given meaning by consumers.). A brand is more than the object
itself, a brand is the perception-[a] series of images, themes, morals, values,
feelings, and sense of authenticity conjured by the product itself. The brand is the
essence of what will be experienced; the brand is a promise as much as a
practicality. Id. at 4. See also Vanessa Friedman, How Nike Won the Cultural
Marathon, N.Y. TIMES (June 22, 2023), archived athttps://perma.cc/W3HM-QDK2
Copyright © 2025 Journal of High Technology Law and Kelsey Shaughnessy.
All Rights Reserved. ISSN 1536-7983.](ViewImageLocal?handle=hein.journals/jhtl26&div=1&collection=&method=preview&ext=.png&size=3)