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49 U. Louisville L. Rev. 465 (2010-2011)
Calling Bullshit on the Lanham Act: The 2(a) Bar for Immoral, Scandalous, and Disparaging Marks

handle is hein.journals/branlaj49 and id is 471 raw text is: CALLING BULLS**T ON THE LANHAM ACT: THE 2(a) BAR FOR IMMORAL, SCANDALOUS, AND DISPARAGING MARKS Megan M Carpenter and Kathryn T Murphy- I. INTRODUCTION 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.2 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 ' Associate Professor of Law and Director, Center for Law and Intellectual Property (CLIP), Texas Wesleyan School of Law. J.D. Candidate, May 2011, Texas Wesleyan School of Law, BA Texas Christian University, December 2004. ' See, e.g., David W. Barnes, Trademark Extenalitie, 10 YALEJ.L & TECH. 1, 10-11 (2007); Mark A. Lemley & Mark P. McKenna, Ownuing Mark(et)s, 109 MICH. L. REV. 137, 142 (2010); Philip Nelson, Infomation and Conswner Behwior, 78J. POL. EcoN. 311, 313 (1970); see also Mark McKenna, The Nomative Foundations of Trademark Law, 82 NOTRE DAME L. REV. 1839, 1844-45 (2007), reprinted in 97 TRADEMARK REP. 1126, 1129-30 (2007). 2 See 15 U.S.C. § 1052(a) (2006). In section 2(a), the Lanham Act also prevents registration of marks that are deceptive or create a false association with persons, groups, or beliefs. See id. 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, the bar to registration for marks that are immoral, scandalous, or disparaging is not A thorough explication of the 2(a) bars in light of trademark policy will be forthcoming in a later piece. 465

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