Calling Bulls**t on the Lanham Act: The 2(a) Bar for Immoral, Scandalous, and Disparaging Marks

Abstract

As the Lanham Act approaches the age of 65, it is a good time to take stock of its application to, and place within, the object and purpose of trademark law. Trademark law seeks 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 prevents registration of marks that are “immoral,” “scandalous,” “disparaging,” “deceptive,” or which “create a false association” with persons, institutions, beliefs, or national symbols. The 2(a) bar expands trademark law well beyond its basic goals. While a bar to registration for marks that are deceptive or create a false association is related to the overall object and purpose of trademark law, we argue that the bar to registration for marks that are immoral, scandalous, or disparaging is not, and that the 2(a) bar is — both in definition and application — ineffective, inconsistent, and vague, and that it should be removed from the Lanham Act.

Keywords: Lanham, Act, 2(a), trademark, bar, scandalous, immoral, disparaging