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Abstract:
In 1905, Congress enacted a revised trademark registration act, which included a prohibition on registering marks containing or consisting of scandalous or immoral material. Because Congress failed to provide any further guidance either in legislative history or in the statutory language, administrative bodies and the courts have struggled to define this standard. Over the past century, decisions applying this prohibition have been inconsistent. The general public and potential trademark owners are unable to predict accurately if a mark will be accepted or refused for federal registration, which has some significant benefits. Perhaps because of this uncertainty, some estimate that hundreds of applications are rejected annually on the basis of the scandalous registration prohibition.

To better understand Congress' motivation, the article starts by exploring the historical foundation for the scandalous registration prohibition. While much has been said about the lack of specific legislative history, there is a plethora of unexamined, relevant legislative material, which gives insight into the prohibition. The article also explores previously untapped resources regarding the preexisting common law and perceptions of 19th century legal scholars concerning whether it is appropriate to protect marks containing scandalous or immoral material and, if so, what constitutes scandalous or immoral material. This discussion then transitions into an analysis of the reported decisions applying the scandalous registration prohibition as well as the suggested Congressional justifications for its enactment.

Finally, the article proposes an innovative, two-tiered system for evaluating the scandalous registration prohibition. The first tier amalgamates a much more recent theory of trademark protection, dilution of famous marks, with the scandalous registration prohibition. The difference between fame and infamy is merely one of consequence - both have gained public recognition, but one garners a positive impression whereas the other does not. Thus, I suggest that the considerations used by courts to identify famous marks should equally be applied to identify certain scandalous marks, namely those marks that, regardless of the context, would always be perceived as scandalous.

In the proposed second tier, I suggest a significant shift in evaluating contextually scandalous marks. Under the current regime, the Patent and Trademark Office has the burden of demonstrating that a mark is scandalous, which is the same burden that it shoulders for all the other registration prohibitions. Yet, treating the scandalous registration prohibition in an identical manner to the other prohibitions belies its very nature. Unlike the others, the scandalous registration prohibition is not motivated by attempts to ensure fair competition or to protect the public from deception. Rather, it must have been motivated by a desire to protect the public (or the federal government) by denying federal registration to offensive commercial speech. Given that essential distinction, I propose that the burden be placed on the trademark applicant's shoulders. When a mark with multiple meanings is under review, it would be presumed that the public would associate the mark with the vulgar meaning rather than with the non-vulgar meaning. The applicant could overcome the presumption only by examination of the mark's context, including any additional material in the marks, the associated goods and services, and other market-related restrictions.

Trademark Registration, Scandalous, Immoral, Deceptive, Mark, Marks, Trademark, Scandalous Registration, Commercial Speech, Fame, Infamy, Patent and Trademark Office, PTO, Lanham Act, Convention for the Protection of Industrial Property, Trademark Dilution Act

Abstract:
Federal dilution doctrine suffers the typical growing pains of an adolescent struggling to determine its identity and boundaries. Congress did not create a federal dilution claim until 1995 and significantly amended in 2006. As currently conceived in the Lanham Act, a federal dilution by blurring claim involves the owner of a famous, [senior] mark bringing suit against the owner of a junior mark, which must be used after the senior mark has achieved fame, but only if the junior mark is sufficiently similar to impair the distinctiveness of the senior mark. The statute identifies several factors that can be used to determine if the junior mark impairs the senior mark, also called blurring, but this list is not exclusive, and determining the relevance of other factors requires understanding the harm purportedly prevented by the dilution doctrine. As courts struggle to articulate the purpose of the dilution by blurring doctrine and apply the new test, current and future trademark owners are left speculating whether their new marks could be subject to a blurring claim.

This article describes the evolution of the dilution doctrine, discusses the difficulty courts have had in evaluating the similarity between marks for a dilution claim, identifies the intrinsic purpose for dilution claims and applies the methodology for determining substantial similarity in copyright infringement to dilution claims. Because dilution by blurring depends upon evaluating numerous factors, including similarity of marks, this test can only identify whether a mark is sufficiently dissimilar to the famous mark to avoid a dilution claim. In other words, the proposed test assists trademark owners in understanding when a rose image is sufficiently distinct from another rose image to avoid a dilution claim.

Trademark, Mark, Dilution Doctrine, Lanham Act, Similarity Test, Senior Mark, Junior Mark, Distinctiveness, Blurring, FTDA, Federal Trademark Dilution Act, Likelihood of Confusion

Abstract:
The international community has long recognized that environmental problems can reach beyond territorial borders to affect the entire globe. The global community has also recognized that environmental problems often manifest long before the scientific community can conclusively point to a cause.

One of the main problems in resolving global warming is convincing developing nations that they can reduce their emissions without compromising their economic growth. Developing nations want to continue down the same path developed countries took to industrialize, even if it negatively affects the environment. Many of the developing nations rightfully claim that developed nations exploited the environment to make their economic strides. Yet developed nations now are unwilling for developing nations to take similar steps.

The only prescriptive environmental agreement that successfully overcome similar problems is the Montreal Protocol. The key to its success was the effective negotiation and implementation of a technology transfer and financing provision. While several other international agreements have similar provisions, none have been implemented as successfully as the Montreal Protocol.

In order to combat the ever-increasing problem of global warming, developing nations need technology that will limit emissions while allowing for economic growth. This paper examines the problem of global warming and the reasons developing nations currently are unable to reduce their emissions. It then looks at the factors leading to the success of the Montreal Protocol and examine the global warming debate in light of these factors.

Environment, Environmental, Territorial borders, Global warming, Developing countries, Developed countries, Industrialization, Montreal Protocol, Technology transfer, Emissions, Economic growth