Section 2(a) of the Lanham Act contained two “morality bars” to the registration of trademarks: the Disparagement Clause and the Immoral and Scandalous Clause. Two recent cases, the Supreme Court decision in Matal v. Tam and the subsequent decision from the Federal Circuit, In re Brunetti, both held that the morality bars violate the First Amendment. Given the inconsistent application of the Disparagement Clause and the potential for viewpoint discrimination, theTam Court was correct in finding it unconstitutional. For similar reasons, the court in Brunetti properly extended this holding to the Immoral and Scandalous Clause. However, both decisions ignored the social context in which the marks were used. Considering the circumstances surrounding the creation of these marks would prevent disparaging marks from harming the targeted communities, while also allowing marginalized groups to reclaim formerly disparaging terms. If the morality bars were applied using context-specific analysis, the application could be more consistent, produce better results, and could survive First Amendment strict scrutiny. Although both the Disparagement Clause and the Immoral and Scandalous Clause have been overturned, they could still be preserved in a reduced, more narrowly tailored form.
A Slanted View on the Morality Bars: Matal v. Tam, In re Brunetti, and the Future of Section 2(a) of the Lanham Act,
Bus. Entrepreneurship & Tax L. Rev.
Available at: https://scholarship.law.missouri.edu/betr/vol2/iss2/11