Contextual Healing: What to Do About Scandalous Trademarks and Lanham Act 2(a)

Academic Article


  • In this Article, I answer the fundamental question: Given the problems that my previous research has identified, what should be done about the 2(a) bar on registration of scandalous trademarks? This Article argues, as a preliminary matter, that the registration bar on scandalous marks should be removed from the Lanham Act because morality is outside the function and purpose of trademark law. Furthermore, removal of the bar would be in line with other forms of intellectual property, which have moved away from regulating morality. Finally, removing the bar would resolve concerns about the constitutionality of section 2(a). However, if the 2(a) bar remains part of the Lanham Act, it should be applied in a way that is fair and effective within in the legal framework of trademark law. Specifically, this Article argues that trademark examiners should evaluate offensiveness in the same way other bars to registration — and content in broadcast media — are evaluated: by considering the context of the marketplace.
  • Status

    Publication Date

  • 2016
  • Has Subject Area

    Published In


  • In re Tam
  • Lanham Act 2(a)
  • Redskins
  • disparaging
  • immoral
  • offensive
  • scandalous
  • trademark law
  • trademark registration
  • Start Page

  • 1
  • End Page

  • 44
  • Volume

  • 68