Scandalous Marks

Definition

Scandalous marks are trademarks that are considered offensive, immoral, or shocking to the public's sense of decency. These types of marks are prohibited from federal trademark registration under the Lanham Act, as they can be detrimental to the public and the trademark system.

5 Must Know Facts For Your Next Test

1. Scandalous marks are prohibited from federal trademark registration under Section 2(a) of the Lanham Act, which prohibits the registration of marks that are 'scandalous, immoral, or disparaging.'
2. The determination of whether a mark is scandalous is based on the perspective of a substantial composite of the general public, not just a small or niche segment of the population.
3. Factors considered in determining if a mark is scandalous include the meaning of the mark, the context in which it is used, and the overall commercial impression it conveys.
4. Marks that are considered offensive or vulgar based on contemporary attitudes and standards are more likely to be deemed scandalous and unregistrable.
5. The burden of proof for establishing that a mark is scandalous rests with the USPTO, which must demonstrate that the mark is offensive to a substantial composite of the general public.

Review Questions

• Explain the rationale behind the prohibition of scandalous marks from federal trademark registration.
  • The prohibition of scandalous marks from federal trademark registration is based on the idea that such marks can be detrimental to the public and the trademark system as a whole. Offensive, immoral, or shocking marks can be seen as undermining the integrity and purpose of the trademark system, which is to protect source identifiers and prevent consumer confusion. By refusing to register these types of marks, the USPTO aims to uphold the public's sense of decency and maintain the credibility of the trademark register.
• Describe the factors considered in determining whether a mark is scandalous and thus unregistrable.
  • In determining whether a mark is scandalous, the USPTO considers the meaning of the mark, the context in which it is used, and the overall commercial impression it conveys. The key factor is whether the mark is offensive or shocking to a substantial composite of the general public, based on contemporary attitudes and standards. The burden of proof rests with the USPTO to demonstrate that the mark meets this threshold for being deemed scandalous and unregistrable.
• Analyze the potential impact of allowing the registration of scandalous marks on the trademark system and the public.
  • Allowing the registration of scandalous marks could have significant negative consequences for the trademark system and the public. Registering offensive or vulgar marks could undermine the credibility and integrity of the trademark register, as it would be seen as the government endorsing or legitimizing such marks. This could also lead to a proliferation of scandalous marks, which could be detrimental to the public's sense of decency and create a more coarse and vulgar commercial landscape. Furthermore, the registration of scandalous marks could enable their widespread use and dissemination, potentially exposing the public, including minors, to objectionable content. Therefore, the prohibition of scandalous marks is a necessary safeguard to protect the public interest and maintain the purpose and legitimacy of the trademark system.

Related terms

Immoral or Scandalous Marks: Trademarks that are deemed to be vulgar, profane, or offensive in nature, and thus unregistrable under the Lanham Act.

Disparagement: The act of belittling or casting aspersions on a person, group, or entity, which can also be grounds for refusing trademark registration.

Deceptive Marks:

Trademarks that are likely to mislead or deceive the public about the nature, quality, or source of the goods or services they represent, and are therefore unregistrable.