Total Credits: 4.8
The Supreme Court IP Review (SCIPR) conference is designed to provide intellectual property practitioners, jurists, legal academics and law students with a review of IP cases from the U.S. Supreme Court’s previous Term, a preview of cases on the docket for the upcoming Term, and a discussion of cert. petitions to watch.
Prominent lawyers and professors will share their analysis of the Supreme Court’s decisions in IP cases from the past term, including the high-profile cases Jack Daniel’s Properties, Inc. v. VIP Products LLC, and Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.
Chicago-Kent Professor Graeme Dinwoodie will deliver the Keynote Address, “Reading Trademark Tea-Leaves at the Supreme Court.”
On-Demand video of the conference will be available, for purchase, 14-28 days after the conference.
Mariel is an associate at Clement & Murphy PLLC where her practice focuses on appellate and Supreme Court litigation. She has obtained success for clients in multiple cases before the U. S. Supreme Court, both at the certiorari stage and on the merits. She has also authored successful briefs before numerous federal and state appellate courts. Her litigation experience spans a wide range of subject areas, including constitutional law, administrative law, antitrust, bankruptcy, contract, energy, sovereign immunity, and more. Prior to private practice, Mariel clerked for then-Judge Amy Coney Barrett of the U.S. Court of Appeals for the Seventh Circuit and Judge Kevin C. Newsom of the U.S. Court of Appeals for the Eleventh Circuit. She graduated from the University of Michigan Law School, where she was Michigan Law Review Executive Articles Editor and a member of the Campbell Moot Court Competition board, and practiced at Kirkland & Ellis LLP before joining Clement & Murphy. Prior to law school she was a tax CPA at PwC in Chicago.
Dale Cendali is the head of Kirkland’s Copyright, Trademark, Internet, and Advertising practice group. Dale is a “preeminent leader in the field of IP” (Chambers), having successfully litigated and tried numerous high-profile cases. Her practice spans the district court to the United States Supreme Court, where most recently she achieved a major victory arguing and winning 9-0 a case for Lucky Brand LLC in its trademark dispute with Marcel concerning the LUCKY BRAND house mark. Dale’s practice encompasses copyright, trademark, false advertising, Internet, and trade secrets law, as well as defamation, the right of publicity, privacy, complex contract disputes (including in the arbitration context) and similar areas.
Dale’s numerous accolades include being named by The National Law Journal as one of the “100 Most Influential Lawyers in America.” Law360 named her one of the 25 “Icons of IP” who “have made an indelible mark in the IP area.” Dale was also acknowledged by Managing IP as “Outstanding IP Litigator: New York.” Managing IP also named her trial victory for J.K. Rowling on the high-profile “Lexicon” fair use case “Copyright Trial of the Year.” Dale was repeatedly named to The Hollywood Reporter’s “Power Lawyers,” a list of Hollywood’s top 100 attorneys. In addition, Dale has repeatedly been recognized as a leading lawyer by Chambers & Partners and The Legal 500 U.S. Most recently, she was honored with the prestigious President’s Award from the International Trademark Association (INTA) in acknowledgement of her preeminent contributions to the trademark community.
Dale is a prolific writer and has long been active in the bar. She is a member of INTA’s Amicus Committee, formerly served as Counsel to the INTA Board, and chaired the Copyright, Dilution and Enforcement committees. Dale has served on the Council for the American Bar Association’s IP Section and is the current chair of its Amicus Committee. She is co-editor of the ABA Copyright Litigation Strategies Handbook, as well as author of its chapter on “The Fair Use Defense: Strategic Considerations.” Dale has chaired several committees for the New York City Bar Association, including the IP Leadership Council, and currently serves on the Copyright Committee. She is an Advisor to the American Law Institute’s Restatement of Copyright Law project. Dale is also an adjunct professor at Harvard Law School, teaching a popular course on copyright and trademark litigation.
Dale is a graduate of Yale University and Harvard Law School.
Margaret Chon is faculty co-director of the Technology, Innovation Law, and Ethics (TILE) Program and Donald & Lynda Horowitz Endowed Chair for the Pursuit of Justice at Seattle University School of Law. Author of numerous articles, book chapters and review essays on knowledge governance through intellectual property, she focuses mainly on the role of global intellectual property in human and sustainable development. Her co-edited books include Improving Intellectual Property: A Global Project (with Susy Frankel, Graeme Dinwoodie, Barbara Lauriat, and Jens Schovsbo 2023) and the Cambridge Handbook of Public-Private Partnerships, Intellectual Property, and Sustainable Development (with Pedro Roffe and Ahmed Abdel-Latif, 2018). She is an alumna of the University of Michigan (M.H.S.A. and J.D.) and Cornell University (A.B.), and an elected member of the American Law Institute and the American Bar Foundation.
Shari Seidman Diamond, JD, PhD, is the Howard J. Trienens Professor of Law and Professor of Psychology at Northwestern University and a research professor at the American Bar Foundation. An attorney and social psychologist, she has authored 150 articles in behavioral science journals and legal publications; has taught at the University of Chicago, Harvard, and the U. of Illinois at Chicago; served as editor of the Law & Society Review; and was president of the American Psychology-Law Society. She has lectured widely to scholarly and judicial audiences, and has testified in American and Canadian courts on surveys and juries. Her publications have been cited by federal and state courts, including the U.S. Supreme Court. Professor Diamond received the 2010 Harry Kalven, Jr. Award from the Law and Society Association for Contributions to Research in Law and Society, and the 1991 American Psychological Association Award for Distinguished Contributions to Research in Public Policy. As a member of the ABA’s American Jury Project, she helped draft the Principles for Juries and Jury Trials adopted in 2005, and she currently serves as an advisor to the ABA Commission on the Jury. She was elected in 2012 to the American Academy of Arts and Sciences.
Graeme B. Dinwoodie is a University Distinguished Professor and Global Professor of Intellectual Property Law at Chicago-Kent College of Law. He returned to Chicago in 2018 after nine years as the IP Chair at the University of Oxford. He remains a Visiting Professor of Law at Oxford. Immediately prior to taking up the IP Chair at Oxford, Professor Dinwoodie was for several years a Professor of Law at Chicago-Kent College of Law. During that time, Professor Dinwoodie led Chicago-Kent's Program in Intellectual Property Law, helping to build the program’s international reputation. Professor Dinwoodie first joined the Chicago-Kent faculty in 2000 from the University of Cincinnati College of Law, where he was a three-time recipient of the Goldman Prize for Excellence in Teaching. From 2005 to 2009, he also held a Chair in Intellectual Property Law at Queen Mary College, University of London. Professor Dinwoodie has held a number of visiting positions, including as the Yong Shook Lin Visiting Professor of IP Law at the National University of Singapore, a Global Professor of Law at NYU School of Law, and a visiting professor of law at the University of Pennsylvania. He was elected as a member of the American Law Institute in 2003. In 2008, INTA awarded Professor Dinwoodie the Pattishall Medal for Teaching Excellence in Trademark Law—awarded only once every four years. Professor Dinwoodie holds law degrees from the University of Glasgow, Harvard Law School (where he was a John F. Kennedy Scholar) and Columbia Law School (where he was the Burton Fellow in residence).
Professor Dinwoodie is the author of many books and casebooks, including A Neofederalist Vision of TRIPS: The Resilience of the International Intellectual Property Regime (Oxford University Press 2012) (with R. Dreyfuss), Trademarks and Unfair Competition: Law and Policy (6th ed. 2022) (with M. Janis), Trade Dress and Design Law (2010) (with M. Janis), and International Intellectual Property Law and Policy (2d ed. 2008) (with W. Hennessey, S. Perlmutter & G. Austin); dozens of articles, book chapters and other substantial works; and numerous essays and shorter works. His scholarship is widely cited by scholars in the United States, Europe and elsewhere. He received the 2008 Ladas Memorial Award from the International Trademark Association for his article Confusion Over Use: Contextualism in Trademark Law (with M. Janis), an article that was recently cited by the US Supreme Court in Jack Daniel’s v VIP Prods. He is considered a leading international authority in trademark law, design law, and international intellectual property law, and is regularly invited to speak at numerous conferences and institutions around the world. Prof. Dinwoodie was elected to the IP Hall of Fame in 2020.
Professor Dinwoodie has served as a consultant to the World Intellectual Property Organization on matters of private international law, as an adviser to the American Law Institute Project on Principles on Jurisdiction and Recognition of Judgments in Intellectual Property Matters, and as a consultant to the United Nations Conference on Trade and Development on the Protection of Traditional Knowledge. He currently serves as an adviser on the ALI's project on the Restatement of Copyright Law. He is a past chair of the Intellectual Property Section of the Association of American Law Schools and was president of the International Association for the Advancement of Teaching and Research in Intellectual Property (ATRIP) from 2011 to 2013. Prior to teaching, Professor Dinwoodie had been an associate with Sullivan and Cromwell in New York, concentrating in the practice of intellectual property law and in commercial, corporate, and international litigation.
Christine Haight Farley is a Professor of Law at American University Washington College of Law. She specializes in information law and teaches courses on contract law, intellectual property, advertising law, and art law. Her current research focuses on branding in the age of data-driven advertising and the over protection of design. She serves as Co-Faculty Director of the Program on Information Justice and Intellectual Property and previously served as Associate Dean for Faculty and Academic Affairs. Farley has received the Excellence in Teaching Award and the Edwin A. Mooers Scholarship Award at American. She has been a visiting professor at Boston University, the University of Paris West, the University of Puerto Rico, the University of Havana, Monash University, and the National Law University in Lucknow, India, and has given lectures on intellectual property in more than twenty-five countries. She serves on the Board of Directors for the Center for Inter-American Legal Education, and has served on the Executive Committees of the Intellectual Property and the Art Law Sections of the American Association of Law Schools and as a member of a presidential task force of the International Trademark Association. She is the recipient of a Fulbright Senior Specialist grant to teach U.S. intellectual property law to foreign law students. Before teaching, she was an associate specialized in trademark and copyright litigation with Rabinowitz, Boudin, Standard, Krinsky & Lieberman in New York. She holds a B.A. (Binghamton), J.D. (Buffalo), LL.M. (Columbia), and a J.S.D. (Columbia).
Yolanda M. King is the Director of the Center for Intellectual Property, Information and Privacy Law and an Associate Professor of Law at University of Illinois Chicago School of Law. She teaches Property and intellectual property law courses. Her scholarly interests include the copyrightability of tattoos, the enforcement of tattoo copyrights, right of publicity protection for celebrities’ tattoos and choreography, and music licensing.
Dean King is Of Counsel at Chicago-based intellectual property law firm Advitam IP, where she advises clients on trademark protection and prosecutes federal trademark applications before the U.S. Patent and Trademark Office.
She graduated from Harvard Law School and Indiana University-Purdue University Indianapolis.
Bart A. Lazar –Brief Bio.
Bart is a partner in the intellectual property group at Seyfarth Shaw in Chicago.
Bart is an innovative and trusted strategic advisor with substantial expertise in copyright, trademark, advertising, privacy, Internet/social media, cybercrime and related matters. He is an experienced strategic problem solver and ardent protector of key intangible assets, including trademarks, copyrights and data. Bart helps clients identify, protect, commercialize and enforce intellectual property rights, structure and implement data processing and management strategies, and design and execute innovative social and traditional media promotional programs.
He acts as lead and local counsel in false advertising, unfair competition, trademark, trademark counterfeiting and Internet-related litigation. Bart has protected global consumer, entertainment and sports brands by obtaining ex parte seizure orders to combat piracy, including orders covering concert tours, the NBA finals and trade shows.
Bart is a pioneer and thought leader in the areas of data privacy and security, Internet law and social media, defending the first Internet privacy case brought by the Federal Trade Commission and the first database security breach case brought by the New York Attorney General. He has handled cutting edge cases and cases of first impression involving trademark counterfeiting, trademark licensing, cybercrime and Internet law.
Bart is a mentor and educator, establishing and leading an intellectual property externship program (at Chicago-Kent) for over 15 years, actively writing and speaking about trademark, copyright, privacy and new media issues and was recently quoted in the New York Time regarding the Warhol case.
Bart has a BA from the University of Chicago, a JD with honors from Chicago-Kent and an LLM from New York University School of Law.
In 2015 Chicago Kent awarded Bart its Professional Achievement Award.
Professor Lee teaches international intellectual property law, copyright law, and trademark law. He joined IIT Chicago-Kent's faculty in 2010 as a professor of law and director of the Program in Intellectual Property Law. He was a visiting faculty member at Chicago-Kent during the fall 2009 term from The Ohio State University Moritz College of Law, where he was a professor of law.
Professor Lee is a 1995 cum laude graduate of Harvard Law School, where he was an editor and co-chair of the books and commentaries office of the Harvard Law Review. In 1992, he graduated Phi Beta Kappa and summa cum laude from Williams College with a bachelor's degree in philosophy (highest honors) and classics.
Professor Lee's research focuses on the ways in which the Internet, technological development, and globalization challenge existing legal paradigms. He also writes extensively about the Framers' understanding of the Free Press Clause as a limit on using the Copyright Clause to restrict technologies. In addition to numerous articles, he co-authored a leading casebook with Daniel Chow titled International Intellectual Property: Problems, Cases, and Materials (West Group 2006).
Previously, Professor Lee was a legal writing instructor at Stanford Law School and an attorney at Stanford's Center for Internet and Society, where he supervised students involved in public interest litigation related to law and technology and the Internet. From 1996 to 1999, Professor Lee was a litigation associate in the Washington, D.C., office of Mayer, Brown & Platt, working at all levels of trial and appellate litigation, including cases before the U.S. Supreme Court. Immediately following law school, he clerked for the Honorable John T. Noonan Jr. of the U.S. Court of Appeals for the Ninth Circuit.
Oskar Liivak, Professor of Law, graduated from Rutgers College with highest honors in 1994, received a Ph.D. 2000 in physics from Cornell University focusing on techniques for determining protein structure, and received a J.D. from the Yale Law School in 2005.
From 2000 to 2001, he was a post-doctoral scientist working on physical realization of quantum computing in the Quantum Information Group at IBM's Almaden Research Center in San Jose, California. Prior to law school, he served as a patent agent in the Boston office of Fish and Richardson P.C. Most recently, Professor Liivak served as a law clerk to Judge Sharon Prost on the United States Court of Appeals for the Federal Circuit.
Joseph T. Nabor is a partner at Fitch Even Tabin & Flannery LLP and has chaired the firm’s Trademark, Brands, and Copyright Practice Group since 1989. During that time, he has prosecuted thousands of domestic and foreign trademark applications, including renewals and affidavits of use.
Joe’s practice comprises primarily trademark work—both prosecution and litigation, domestic as well as international—along with copyright and patent counseling. He has been extensively involved in the conduct of discovery, the negotiation of settlement, an extensive motion practice, as well as obtaining and defending against the issuance of injunctions. Joe has been the lead attorney in hundreds of Oppositions before the Trademark Trial and Appeal Board (TTAB), in addition to directing oppositions and similar proceedings internationally.
All manner of clients, from start-up companies to Fortune 100 leaders in numerous industries, have sought Joe’s counsel for sophisticated brand and portfolio development strategies. These transactions have included securing trademark rights throughout the world. Joe has also been involved in the acquisition of the intellectual property portfolios of many industry leaders. His clients rely on Joe’s practical approach, which starts with listening to the client to understand the desired outcome, then applying his experience and knowledge to best position the matter, while looking beyond just the legal perimeters to strategically reach the targeted goal.
A frequent speaker and author, Joe has been sought after for presentations on U.S. legal issues throughout the World.
Laura Pedraza-Fariña is a Professor of Law at Northwestern Pritzker School of law and a faculty affiliate of the Science in Human Culture Program at Northwestern University. She received her J.D. from Harvard Law School and her Ph.D. in Genetics from Yale University.
Professor Pedraza-Fariña’s research falls into two main areas: innovation law and policy, and international organizations (with an emphasis on those organizations that address global health and intellectual property concerns). Using the mixed methods of network science, science and technology studies (STS), and history of science, Professor Pedraza-Fariña 's scholarship on innovation law has developed a sociologically informed approach to intellectual property (IP) law that focuses on the ways in which both technical and artistic knowledge, and thus innovation, are generated, maintained and modified. Her body of work on innovation law provides a framework for understanding, from both a qualitative and a quantitative perspective, how on the ground innovation dynamics impact innovation outcomes. In turn, in depth knowledge of this relationship between on-the-ground practices and innovation outcomes can help formulate more accurate theories of innovation that can better guide the development of innovation law and policy.
Professor Pedraza-Fariña’s work at the intersection of global health and international intellectual property law analyzes the role of international organizations with overlapping regulatory domains in shaping the relationship between these two legal domains—global health and international IP. Her most recent project analyzes the often contentious relationship between two international organizations with overlapping regulatory domains in these two areas: the World Trade Organization (WTO) and the World Health Organization (WHO).
Her research has been published and is forthcoming in both law reviews and peer-reviewed journals, including the University of Chicago Law Review, Northwestern University Law Review, Notre Dame Law Review, and Osiris.
Greg Reilly is an Associate Professor of Law at Illinois Tech Chicago-Kent College of Law, where he is also the Associate Dean for Faculty and Research and a Freehling Scholar His research and teaching interests are at the intersection of intellectual property and federal courts/procedure, with a particular focus on how institutions and decision makers resolve patent disputes. His projects have focused on administrative cancellation of issued patents; the fit between patent doctrines and the relevant decision makers; patent claim construction; patent litigation reform; and the efforts of the Eastern District of Texas to attract patent cases. Professor Reilly's work is published in the Boston University Law Review, Southern California Law Review, Washington University Law Review, and Notre Dame Law Review, among other places. Professor Reilly previously held a tenure-track appointment at California Western School of Law, was a Harry A. Bigelow Teaching Fellow and Lecturer in Law at the University of Chicago Law School, practiced patent and appellate litigation at Morrison & Foerster LLP, and clerked for Judge Timothy B. Dyk of the U.S. Court of Appeals for the Federal Circuit. He graduated magna cum laude from Harvard Law School and summa cum laude from Georgetown University.
Joshua R. Rich is an intellectual property trial lawyer and a partner with McDonnell Boehnen Hulbert & Berghoff LLP. He serves as MBHB’s General Counsel and Chair of MBHB’s Trade Secrets Practice Group.
In over 20 years of trying intellectual property cases and counseling clients, Mr. Rich has built broad experience irichn dealing with complex and difficult issues. He has successfully litigated in Federal and state trial and appellate courts throughout the United States, in cases involving patent, trade secret, trademark, copyright, and other commercial issues. He has also represented clients before the United States Patent and Trademark Office in inter partes review, reexamination, and interference proceedings, as well as in arbitrations around the world. But his experience is not limited to adversarial proceedings; Mr. Rich has worked closely with clients to avoid litigation when appropriate.
While Mr. Rich has represented clients primarily in the pharmaceutical, biotechnology, and medical device fields, his experience has also included such other diverse technologies as telecommunications, computer code, and graphical user interfaces. He is accomplished in all facets of trial and appellate litigation, ranging from pretrial seizures and preliminary injunction proceedings to bench and jury trials, appeals, and certiorari petitions. He works closely with clients to find the best solutions to intellectual property disputes.
Zvi S. Rosen is an Assistant Professor at the Southern Illinois University School of Law. He has served as a Visiting Assistant Professor at the Maurice A. Deane School of Law at Hofstra University and as a Visiting Scholar and Professorial Lecturer in Law at George Washington University School of Law. In 2015-2016, he was the Abraham L. Kaminstein Scholar in Residence at the U.S. Copyright Office. Mr. Rosen received his J.D. from Northwestern University School of Law in 2005 and LLM in Intellectual Property in 2006 from the George Washington University Law School. He has practiced at Fried, Frank, Harris, Shriver & Jacobson LLP as well as smaller firms and his own practice, and clerked for the Hon. Thomas B. Bennett of the U.S. Bankruptcy Court for the Northern District of Alabama. He has written extensively on the development of modern copyright and trademark law, as well as on bankruptcy law.
Richard Stockton is a principal shareholder at Banner Witcoff in Chicago. He received a B.S. degree in Electrical Engineering and a law degree cum laude from the University of Illinois, where he was the Editor-in-Chief of the Journal of Law, Technology & Policy.
Richard is a member of the American Intellectual Property Law Association’s Amicus Committee. He is the former co-chair of AIPLA’s International and Foreign Laws committee and the former chair of the Industrial Design committee. Richard is also a vice chair of the American Bar Association Section of Intellectual Property Law’s Patents division, and a past national chair of the Int’l Trademark Association’s Saul Lefkowitz Trademark Moot Court. Richard has taught an IP pretrial skills class for 17 semesters, first at Georgetown and the Northwestern.
Robert Surrette is a Shareholder and serves as President of McAndrews. He focuses his practice on the resolution of intellectual property and technology-related disputes with an emphasis on patent, trademark, trade secret and trade dress litigation. For the last 15 years, Bob has counseled a leading global medical device manufacturer on numerous litigation and transactional matters. Bob, building on his experience as a federal district court law clerk, has extensive experience in preparing and bringing complex intellectual property cases to trial, including overseeing all aspects of pre-trial discovery, procuring and supervising experts, preparing and arguing pre-trial, dispositive and post-trial motions, including claim construction and summary judgment, and participating in multi-week trials. He also has significant experience in appellate proceedings, including arguing at the Federal Circuit. Bob also maintains an active transactional practice through which he advises clients on transactions involving the transfer of intellectual property, including mergers, asset deals, and licensing deals, and on patent portfolio development and management. He has worked in a number of diverse technology areas, such as surgical control systems, wrist implants, insufflators, hospital beds, surgical cutting tools, medical image capture systems, balloon angioplasty catheters, implantable cardiac pacemakers and defibrillators, as well as digital jukeboxes, electronic dartboards, exhaust systems, contact lenses, fluorescent lighting systems, and chillers.
Lucas Walker is a partner in the Washington, D.C. office of MoloLamken LLP. His practice focuses on appellate litigation in federal and state court, as well as motions practice and issue development at the trial level. He has argued before the U.S. Supreme Court, federal courts of appeals, and district courts, and has briefed numerous other cases in those courts. Mr. Walker’s experience covers a broad range of subject matter, including intellectual property, administrative and constitutional law, bankruptcy, foreign sovereign immunity, telecommunications, energy, and white-collar defense. He recently briefed and argued on behalf of petitioners in Abitron Austria GmbH v. Hetronic International, Inc., where the Supreme Court held that U.S. trademark law does not apply to petitioners’ use of trademarks in foreign countries.
Mr. Walker served two clerkships at the U.S. Supreme Court, first with Justice Samuel A. Alito, Jr. and later with Justice Neil M. Gorsuch. Mr. Walker also served as a law clerk to then-Judge Gorsuch on the U.S. Court of Appeals for the Tenth Circuit.
Mr. Walker teaches Advanced Appellate Advocacy at the George Washington University Law School. He is also co-editor of MoloLamken’s annual Supreme Court Business Briefing.
Holding: Applying the presumption against extraterritoriality, two provisions of the Lanham Act that prohibit trademark infringement — 15 U.S.C. § 1114(1)(a) and § 1125(a)(1) — are not extraterritorial and extend only to claims where the infringing “use in commerce” is domestic. (Alito, 9-0; Justice Jackson filed a concurring opinion. Justice Sotomayor filed an opinion concurring in the judgment, in which Chief Justice Roberts and Justices Kagan and Barrett joined.)
Held (Gorsuch, J., 9-0): Amgen’s two patent applications — purporting to cover all antibodies that bind and block the PCSK9 receptor involved in LDL cholesterol metabolism — fail to satisfy the Patent Act’s enablement clause, see 35 U.S.C. § 112(a).
Holding: When a defendant in a trademark suit uses the mark as a designation of source for its own goods or services — i.e., as a trademark — the threshold Rogers test for trademark infringement claims challenging so-called expressive works, see Rogers v. Grimaldi, does not apply, and the Lanham Act’s exclusion from liability for “[a]ny noncommerical use of a mark” does not shield parody, criticism, or commentary from a claim of trademark dilution. (9-0, in an opinion by Justice Kagan on June 8, 2023. Justice Sotomayor filed a concurring opinion, in which Justice Alito joined. Justice Gorsuch filed a concurring opinion, in which Justices Thomas and Barrett joined.).
Holding: The “purpose and character” of the Andy Warhol Foundation’s particular commercial use of Lynn Goldsmith’s photograph — 17 U.S.C. § 107(1) — does not favor AWF’s “fair use” defense to copyright infringement. (7-2, in an opinion by Justice Sotomayor on May 18, 2023. Justice Gorsuch filed a concurring opinion, in which Justice Jackson joined. Justice Kagan filed a dissenting opinion, in which Chief Justice Roberts joined.)
Issue: Whether the refusal to register a trademark under 15 U.S.C. § 1052(c) violates the free speech clause of the First Amendment when the mark contains criticism of a government official or public figure