The Lanham Act's Unconstitutional Hodgepodge
34 Pages Posted: 24 Aug 2016
Date Written: June 1, 2016
The Hodgepodge is a statutory monster. Lurching quietly and stalking with menace, the Hodgepodge picked off unsuspecting victims for decades. In broad daylight, the Hodgepodge snuck behind its victim placing a muzzle on their mouth. Anyone who gave a cross eye — ridiculed. Anyone who dare question the Hodgepodge’s existence — a heretic. An amalgam of supposed morality and societal decency, the Government released the Hodgepodge on any citizen bold enough to wade into commercial waters without sensitivity to such morality and societal decency. For years, the Hodgepodge has been the Government’s loyal hound, eager to deny federal protection to those stepping outside the bounds of accepted decorum. But, alas, the Hodgepodge may now be dead.
This is the story of Section 2(a) of the Lanham Act in the context of religious disparagement. Section 2(a) — the Hodgepodge — bars federal trademark registration of immoral, deceptive, scandalous or disparaging marks. For decades, the Government has used Section 2(a) as a means to deny the benefits of federal registration offending, inter alia, religious camps. However, on December 22, 2015, in the case of In re Tam, the United States Court of Appeals for the Federal Circuit held Section 2(a) to be an unconstitutional restraint on the First Amendment right of free speech — almost seventy years after the statute was passed.
First, this Note will dive into the legal framework of trademark law and the First Amendment regarding speech-based laws. Next, this Note reviews the history of Section 2(a), as well as discusses the law’s application throughout the years to both mundane and truly offensive trademarks alike in the context of religiously themed trademarks. Then, this Note will discuss In re Tam — the case from late 2015 where the Federal Circuit held Section 2(a) unconstitutional. And finally, in light of Tam, we will take a quick look forward at what lies ahead for the Hodgepodge.
Ultimately, this Note sets out to do one thing: discuss Section 2(a)’s complex (and irrational) history in the context of religious themed trademarks. While issues relating to the Washington Redskins’ trademark has been litigated in both the public arena and courts for decades, it is my contention that when the law is viewed through the lens of apparent religious disparagement, only then, can one see how truly arbitrary the Hodgepodge can be.
Keywords: trademark, religion, Tam, Redskins, Lanham
Suggested Citation: Suggested Citation