Contextual Healing: What to Do About Scandalous Trademarks and Lanham Act 2(a)

45 Pages Posted: 21 Nov 2016 Last revised: 14 Jan 2017

See all articles by Megan M. Carpenter

Megan M. Carpenter

University of New Hampshire School of Law

Date Written: November 18, 2016

Abstract

Offensive trademarks have come to the forefront of trademark policy and practice in recent years. While it was once true that more attention had been paid to Lanham Act section 2(a) in the pages of law reviews than in the courts, recent prominent cases have focused attention on the ban on registration of offensive marks and the widespread impact of this ban on trademark owners.

In this Article, I answer the fundamental question: Given the problems that my previous research has identified, what should be done about the 2(a) bar on registration of scandalous trademarks? This Article argues, as a preliminary matter, that the registration bar on scandalous marks should be removed from the Lanham Act because morality is outside the function and purpose of trademark law. Furthermore, removal of the bar would be in line with other forms of intellectual property, which have moved away from regulating morality. Finally, removing the bar would resolve concerns about the constitutionality of section 2(a). However, if the 2(a) bar remains part of the Lanham Act, it should be applied in a way that is fair and effective within in the legal framework of trademark law. Specifically, this Article argues that trademark examiners should evaluate offensiveness in the same way other bars to registration — and content in broadcast media — are evaluated: by considering the context of the marketplace.

Keywords: trademark law, Lanham Act 2(a), scandalous, immoral, disparaging, offensive, trademark registration, In re Tam, Redskins

Suggested Citation

Carpenter, Megan M., Contextual Healing: What to Do About Scandalous Trademarks and Lanham Act 2(a) (November 18, 2016). Hastings Law Journal, Forthcoming, Texas A&M University School of Law Legal Studies Research Paper No. 17-02, Available at SSRN: https://ssrn.com/abstract=2872286 or http://dx.doi.org/10.2139/ssrn.2872286

Megan M. Carpenter (Contact Author)

University of New Hampshire School of Law ( email )

Two White Street
Concord, NH 03301
United States
6035135100 (Phone)

HOME PAGE: http://https://law.unh.edu/person/megan-m-carpenter

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