The exclusive right to customize?

Artists, political commentators, and even multinational corporations are increasingly taking existing branded products and modifying them-sometimes to comment on the underlying product, sometimes to make a political or artistic statement unrelated to that product, sometimes to make them look fancier than they are, and sometimes for their own advertising purposes. As ornamenting and customizing existing products has shifted from a personal hobby to a business model, trademark owners have begun to insist that they have the exclusive right to control the appearance of products associated with them or that prominently bear their logos. We call this assertion a claim that there should be an exclusive right to customize. This is a new problem for trademark law. Trademark law doesn't lack for doctrines designed to tackle related problems. Indeed, the problem may be that it has too many doctrines that could potentially be brought to bear. Many of these doctrines point in different directions or apply poorly to common forms of customization. We lay out the approach courts should take to evaluate claims to an exclusive right to customize. We also recommend three modifications to trademark doctrine to broadly protect customization from trademark law without undermining trademark causes of actions against its pernicious forms.