Contextual Healing: What to Do About Scandalous Trademarks and Lanham Act 2(a)
Megan M. Carpenter
Volume 68, Issue 1, 1-44
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 cases have focused attention on the ban on registration of offensive marks and the widespread impact of this ban on trademark owners, including a case before the Supreme Court this term. In this Article, I answer the fundamental question: Given the problems previous research has identified, what should be done about the 2(a) bar for scandalous marks?
This Article argues, as a preliminary matter, that the registration bar for scandalous marks 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 the legal framework of trademark law. Specifically, this Article argues that trademark examiners should evaluate offensiveness in the same way other bars to registrationand content in broadcast media are evaluated: by considering the context of the marketplace.