Via Glenn Reynolds, I'm glad to see that Evan Coyne Maloney reached a settlement with Indiana University, which alleged he infringed on their trademark. I don't think he did, and I wrote a post about it.

But that got me to thinking about the right of others to use a logo which the owner still owns, but is forbidden by the government to use.

Back in 1999, in a comprehensive settlement, nearly all forms of tobacco advertising were prohibited, and so were the many peripheral products bearing the various tobacco company logos:

Following President Clinton's lead, U.S. Attorneys General from 46 states (5) joined forces to file a single lawsuit that has made the participating tobacco companies (6) willing to settle to terms that will change the tobacco industry forever. (7) This settlement is known as the Master Settlement Agreement. For example, banned are advertisements on billboards, in sports arenas and stadiums, shopping malls, buses and trains. Sales of T-shirts, caps and other merchandise are banned, as well as promotion of tobacco products in movies, TV shows, theater productions, music performances, videos and video games. (8)

Because a number of the terms contained in the Master Settlement Agreement have sharply restricted the tobacco industry's ability to market and advertise its products, the settlement agreement has First Amendment commercial speech implications. Should challenges to the Master Settlement Agreement arise, the Supreme Court would employ the pathbreaking decision for determining when the government may restrict commercial speech, Central Hudson Gas & Electric Corp. v. Public Service Commission of New York (9) and its progeny to assess its constitutionality. (10)

Are they illegal?

Can commercial speech which is not sold by the commercial entity be called commercial speech and restricted, or it is treated like "free" speech? I mean, suppose someone thought that digital camera cases with Marlboro and other cigarette designs on them would be purchased by people who think it's cute that cameras are now the size and shape of cigarette packs, and they'd like to put them in cases that look like cigarette packs. For fun. I have no idea how many people would buy them, but what's the deal here? The tobacco companies would seem to be barred from selling them, but isn't that only intended to prevent tobacco marketing? What about electronics stores selling them to customers who think they're cool?

What about me? What about people who don't like the anti-tobacco movement, and don't mind showing contempt for it? Don't they have a right to buy tobacco logo merchandise as a protest statement? Is that commercial speech?

What if you think the campaign against tobacco has gone too far, and you want to express solidarity with "forbidden products"?

Some of the stranger nuances of commercial speech (such as whether a manufacturer can be forced to pay for commercialized attacks on his product) are discussed here, and I find myself wondering about whether the First Amendment has been essentially nullified in the case of tobacco. Sure, tobacco is unpopular, but so are Nazis, and they're free to run billboard ads.

Seriously, what about my right to advocate on behalf of cigarettes and smokers' rights? Suppose I think that the best way to do that is to brandish them and urge people to smoke. Why shouldn't I be just as free to do that as I am to brandish condoms and urge people to screw? Why can't I put a giant Marlboro billboard on my property as protest art? Does the First Amendment prohibit me from engaging in a little Warholesque guerilla theater?

There are all kinds of cute products that pro-tobacco protesters could sell.

This "smoker phone" for example, is really nifty.

And here's an ordinary looking pack of Marlboro cigarettes which contains a wireless video camera and transmitter.

Assuming that they both had company logos on them, would the above products violate the 1999 settlement, or are only the companies prohibited from selling them?

Or could the government force the tobacco companies to sue infringers?

How much power do the bastards have?