Stabilizing Morality in Trademark Law
33 Pages Posted: 23 May 2014 Last revised: 14 Oct 2019
Date Written: 2014
Almost all of the commentary concerning the statutory prohibition on registering offensive trademarks lambasts it as a misguided attempt to enforce civility through trademark law. This Article carefully considers the challenges accompanying section 2(a) of the U.S. Trademark Act and defends it as good policy. There are, however, a few instances in which the jurisprudence under section 2(a) has created more problems than it has solved. To alleviate these problems, this Article proposes judging words per se and abandoning the traditional trademark notion of evaluating words in context. Judging words per se is warranted given the very different objectives underlying section 2(a) as compared with the rest of the Trademark Act.
Keywords: trademark law, Lanham Act, morality, scandalous, disparaging marks, trademark registration, Redskins, Native Americans
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