Fearing that the two newspapers were undermining their hegemony over their fans, the New Kids filed a shotgun complaint in federal court raising no fewer than ten claims: (1) common law trademark infringement; (2) Lanham Act false advertising; (3) Lanham Act false designation of origin; (4) Lanham Act unfair competition; (5) state trade name infringement; (6) state false advertising; (7) state unfair competition; (8) commercial misappropriation; (9) common-law misappropriation; and (10) intentional interference with prospective economic advantage. The two papers raised the First Amendment as a defense, on the theory that the polls were part and parcel of their "news-gathering activities." The district court granted summary judgment for defendants. 745 F.Supp. 1540 (C.D.Cal. 1990).

## Discussion

While the district court granted summary judgment on First Amendment grounds, we are free to affirm on any ground fairly presented by the record. Jackson v. Southern Cal. Gas Co., 881 F.2d 638, 643 (9th Cir.1989); Pelleport Inv., Inc. v. Budco Quality Theatres, Inc., 741 F.2d 273, 278 (9th Cir.1984). Indeed, where we are able to resolve the case on nonconstitutional grounds, we ordinarily must avoid reaching the constitutional issue. In re Snyder, 472 U.S. 634, 642-43, 105 S.Ct. 2874, 2879-80, 86 L.Ed.2d 504 (1985); Schweiker v. Hogan, 457 U.S. 569, 585, 102 S.Ct. 2597, 2607, 73 L.Ed.2d 227 (1982). Therefore, we consider first whether the New Kids have stated viable claims on their various causes of action.

## I

A. Since at least the middle ages, trademarks have served primarily to identify the source of goods and services, "to facilitate the tracing of `false' or defective wares and the punishment of the offending craftsman." F. Schechter, The Historical Foundations of the Law Relating to Trademarks 47 (1925). The law has protected trademarks since the early seventeenth century, and the primary focus of trademark law has been misappropriation — the problem of one producer's placing his rival's mark on his own goods. See, e.g., Southern v. How, 79 Eng.Rep. 1243 (K.B. 1618). The law of trademark infringement was imported from England into our legal system with its primary goal the prevention of unfair competition through misappropriated marks. See, e.g., Taylor v. Carpenter, 23 F.Cas. 742 (C.C.D.Mass. 1844) (Story, J.). Although an initial attempt at federal regulation was declared unconstitutional, see the Trade-Mark Cases, 100 U.S. 82, 25 L.Ed. 550 (1879), trademarks have been covered by a comprehensive federal statutory scheme since the passage of the Lanham Act in 1946. Throughout the development of trademark law, the purpose of trademarks remained constant and limited: Identification of the manufacturer or sponsor of a good or the provider of a service.[2] And the wrong protected against was traditionally equally limited: Preventing producers from free-riding on their rivals' marks. Justice Story outlined the classic scenario a century and a half ago when he described a case of "unmitigated and designed infringement of the rights of the plaintiffs, for the purpose of defrauding the public and taking from the plaintiffs the fair earnings of their skill, labor and enterprise." Taylor, 23 F.Cas. at 744. The core protection of the Lanham Act remains faithful to this conception. See 15 U.S.C. § 1114 (prohibiting unauthorized use in commerce of registered marks). Indeed, this area of the law is generally referred to as "unfair

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