Calling Bulls**t on the Lanham Act: The 2(a) Bar for Immoral, Scandalous, and Disparaging Marks

19 Pages Posted: 9 Oct 2010 Last revised: 26 Feb 2015

See all articles by Megan M. Carpenter

Megan M. Carpenter

University of New Hampshire School of Law

Kathryn T. Murphy

Texas Wesleyan University - Texas Wesleyan School of Law

Date Written: October 5, 2010

Abstract

As the Lanham Act approaches the age of 65, it is a good time to take stock of its application to, and place within, the object and purpose of trademark law. Trademark law seeks 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 prevents registration of marks that are “immoral,” “scandalous,” “disparaging,” “deceptive,” or which “create a false association” with persons, institutions, beliefs, or national symbols. The 2(a) bar expands trademark law well beyond its basic goals. 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, we argue that the bar to registration for marks that are immoral, scandalous, or disparaging is not, and that the 2(a) bar is — both in definition and application — ineffective, inconsistent, and vague, and that it should be removed from the Lanham Act.

Keywords: Lanham, Act, 2(a), trademark, bar, scandalous, immoral, disparaging

Suggested Citation

Carpenter, Megan M. and Murphy, Kathryn T., Calling Bulls**t on the Lanham Act: The 2(a) Bar for Immoral, Scandalous, and Disparaging Marks (October 5, 2010). University of Louisville Law Review, Vol. 49, 2010. Available at SSRN: https://ssrn.com/abstract=1687746

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

Kathryn T. Murphy

Texas Wesleyan University - Texas Wesleyan School of Law ( email )

1515 Commerce Street
Fort Worth, TX 76102
United States

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