Alex Weidner


For § 2(a)of the Lanham Act, 2017 proved to be a devastating year. Not only did the Matal v. Tam decision strike down the disparagement provision, it served as a springboard for In re Brunetti to invalidate the bar against immoral and scandalous marks later that year. This Note examines whether the majority correctly invalidated the immoral-scandalous provision, argues that it did not, and analyzes the likelihood the remaining two provisions in the Lanham Act will be struck down by another First Amendment challenge. Part II summarizes the facts and holding of In re Brunetti. Part III provides an overview of trademarks and examines the intersection of free speech with trademark law. Part IV analyzes the reasoning behind the Court’s holding. Part V argues the majority was hasty in invalidating the immoral-scandalous bar completely and the concurring opinion was correct in suggesting a narrow construction of the statute that bars only the registration of obscene marks. It also examines what remains of § 2(a) andargues the remainder of the statute is safe from First Amendment challenge.

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