Moral Judgments in Trademark Law
Under the federal Lanham Act, eligibility for trademark protection depends on whether a mark is sufficiently moral. The Federal Circuit has recently held this provision of the Act to be unconstitutional based on its interpretation of speech doctrine. The context of trademark law, however, refutes this interpretation. Indeed, speech doctrine appears to support this morality requirement. Nevertheless, there seems to be another reason that the Federal Circuit held the morality requirement unconstitutional: the judicial discomfort with morality serving as a basis for law. This Essay concludes that this judicial discomfort is unjustified in this instance. From both a constitutional and a policy perspective, morality may and should serve as a basis for denying trademark protection.
Ned Snow, Moral Judgments in Trademark Law, 66 Am. U. L. Rev. 1093 (2017)