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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)
Megan M      Carpenter and Kathryn T Murphy-
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
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
' 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.


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