University of Louisville Law Review
As the Lanham Act approaches the age of sixty-five, it is a good time to take stock of its application to, and place within, the object and purpose of trademark law. The consumer-search theory of trademarks posits that the purpose of trademark law is to promote fair competition by reducing consumer search costs and preventing confusion in the minds of consumers as to the source of goods and services.' However, section 2(a) of the Lanham Act expands trademark law well beyond its basic goals by preventing registration of marks that are "immoral," "scandalous," or "disparaging."
There are two primary questions raised by this issue: First, should the Lanham Act proscribe trademark registration for marks that are scandalous, immoral, or disparaging? Second, can (and does) the Lanham Act do so effectively? The former question will be the focus of a subsequent article; the latter is the central inquiry of this piece, which discusses some of the practical problems with the interpretation and application of 2(a). Part II begins with a brief discussion of the purpose of trademark law as it has evolved over time and the expansion of trademark law into areas unrelated to its original purpose. Part III examines the meaning and application of the section 2(a) bars for immoral, scandalous, and disparaging marks, and examines how the two doctrines have been interpreted by courts. We argue that the standards are unclear, and, to the extent they do exist, are often erroneously interpreted. Part IV discusses the high degree of inconsistency inherent in interpretation of these particular 2(a) bars and argues that the content-based determinations are so highly subjective that application of the standards fails to take into account contextually relevant information. Part V looks at the registration process itself as a central situs of the application of the 2(a) bars and discusses the inadequacy of evidence available to trademark examiners at the United States Patent and Trademark Office (USPTO). Finally, we conclude that the section 2(a) bar for immoral, scandalous, and disparaging marks is problematic in both interpretation and application.
University of Louisville
Megan M. Carpenter & Kathryn T. Murphy,
Calling Bullshit on the Lanham Act: The 2 (a) Bar for Immoral, Scandalous, and Disparaging Marks,
U. Louisville L. Rev.
Available at: https://scholarship.law.tamu.edu/facscholar/26