Recommended Reading: NYU Law Professors Beebe and Fromer, "Immoral or Scandalous Marks: An Empirical Analysis"

Professors Barton Beebe and Jeanne C. Fromer of New York University School of Law have published a new article on Section 2(a) "immoral or scandalous" refusals: "Immoral or Scandalous Marks: An Empirical Analysis," N.Y.U. Journal of Intell. Prop. & Ent. Law, Vol. 8, No. 2 (Spring 2019). (link here). The article reports the results of a "systematic empirical study of how the United States Patent and Trademark Office (PTO) has applied the immoral-or-scandalous prohibition in practice."

On the basis of these empirical findings, we conclude that the § 2(a) bar on the registration of immoral-or-scandalous matter violates the Free Speech Clause and is unconstitutional. As a preliminary matter, many of the marks subject to an immoral-or-scandalous refusal are instances of high-value speech. Section 2(a)’s immoral-or-scandalous-marks provision fails to satisfy even the “intermediate scrutiny” applied to commercial speech under Central Hudson Gas & Electric Corp. v. Public Service Commission of New York because it is not narrowly drawn and is arbitrarily applied. Furthermore, the provision is unconstitutionally vague and has been applied in a viewpoint-discriminatory manner.

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TTABlog comment: Two earlier articles by these co-authors have made an appearance at the TTABlog: "The Scope of Strong Marks: Should Trademark Law Protect the Strong More Than The Weak?," 92 N.Y.U. Law. Rev. 1390 (November 2017). [pdf here]; and "Are We Running Out Of Trademarks: An Empirical Study of Trademark Depletion and Congestion", 131 Harv. Law Rev. 948 (February 2018). [pdf here].

Text Copyright John L. Welch 2019.