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- Title
IT'S "FUCT": THE DEMISE OF THE LANHAM ACT.
- Authors
COCHRAN, CHRIS
- Abstract
The Lanham Trademark Act of 1946 introduced several tools to help trademark owners protect the long-recognized right to exclusive use of a symbol or device to distinguish one's goods. One of these tools is the Principal Register, which confers certain benefits to marks approved by the United States Patent and Trademark Office (USPTO). The USPTO's examining attorneys must abide by the guidelines contained in Section 2 of the Lanham Act when deciding which marks to approve. Notable among the bars to registration contained within Section 2 are the disparagement and the immoral or scandalous provisions, which examining attorneys often used to reject trademark applications. The Supreme Court and United States Court of Appeals for the Federal Circuit, respectively, recently declared these provisions unconstitutional under First Amendment freedom of speech principles, however. As noted by renowned scholar Rebecca Tushnet, the logic and analyses invoked by both courts are also applicable to most of the other bars contained in Section 2, as well as other parts of the Lanham Act, such as the dilution provision. If challenged, courts may also declare these provisions unconstitutional, undermining the purpose of the Lanham Act. This conclusion seems inevitable unless courts recognize their duty to construe statutes narrowly to preserve their constitutionality and, where possible, adopt a saving construction. This paper explores the potential damning effects of the recent decisions of the Supreme Court and the Federal Circuit. To achieve that end this paper traces the development of the immoral or scandalous provision, reviews the relevant case law, applies the enunciated constitutional tests to the dilution provision of the Lanham Act, and notes a potential solution to prevent the demise of several sections of the Lanham Act.
- Subjects
TRADEMARK Act of 1946 (U.S.); JUDICIAL corruption; UNITED States. Court of Appeals (Federal Circuit)
- Publication
IDEA: The Intellectual Property Law Review, 2019, Vol 59, Issue 2, p333
- ISSN
0019-1272
- Publication type
Article