NSFW: An Empirical Study of Scandalous Trademarks

46 Pages Posted: 15 Jan 2016 Last revised: 4 Aug 2016

See all articles by Megan M. Carpenter

Megan M. Carpenter

University of New Hampshire School of Law

Mary Garner

Texas A&M University (TAMU), School of Law, Students

Date Written: 2016

Abstract

This project is an empirical analysis of trademarks that have received rejections based on their “scandalous” nature. It is the first of its kind.

The Lanham Act bars registration for trademarks that are “scandalous” and “immoral.” While much has been written on the morality provisions in the Lanham Act, this piece is the first scholarly project that engages an empirical analysis of the Section 2(a) rejections based on scandalousness; it contains a look behind the scenes at how the morality provisions are applied throughout the trademark registration process. This study analyzes which marks are being rejected, what evidence is being used to reject them, and who the applicants are. Our data pays particularly close attention to the evidence used to determine whether a mark is scandalous. We also consider whether this bar is effective at removing these marks from the consumer marketplace.

Keywords: trademark law, intellectual property, empirical legal studies, scandalousness, trademark registration, trademark refusal

JEL Classification: O34, K19, K29, K39, K49

Suggested Citation

Carpenter, Megan M. and Garner, Mary, NSFW: An Empirical Study of Scandalous Trademarks (2016). Cardozo Arts & Entertainment Law Journal, Vol. 33, pp. 321-365, 2016; Texas A&M University School of Law Legal Studies Research Paper No. 16-12. Available at SSRN: https://ssrn.com/abstract=2715104

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

Mary Garner

Texas A&M University (TAMU), School of Law, Students ( email )

College Station, TX
United States

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