the context of the relevant sub-market of online adult media.
THE UNCONSTITUTIONALITY OF 2A
Trade names convey messages about the type, cost and quality of the product or service associated with the mark.[1] The fact is, that trademarks propose a commercial transaction, and under long-established Supreme Court precedent, speech that proposes a commercial transaction is "commercial speech" and thus subject to First Amendment protection.[2] The trademark is a tightly targeted bit of expressive activity that seeks to persuade a potential customer to choose one product over another, either due to the identification of goods or to the communicative element of the trademark itself.
The USPTO's prohibition of scandalous or immoral marks has been harshly criticized.[3] Thus far, all USPTO decisions regarding the constitutionality of Section 2(A) rely upon the improperly decided case In re Robert L. McGinley.[4] Even if McGinley were properly decided, it has been superseded by multiple cases that have calcified the previously more amorphous area of commercial speech law and the law surrounding the constitutionally of restrictive laws based on morality.
McGinley held that since trademark applicants were still free to use the trademarks, then there was no abridgment of speech. However, this reasoning is simply shoddy and unsupported by a vast body of First Amendment jurisprudence. For example, in striking down New York's "Son of Sam" law, which prohibited criminals from profiting from writing books about their crimes, the Supreme Court held "[a] statute is presumptively inconsistent with the First
- ↑ See Friedman v. Rogers, 440 U. S. 1, 11 (1979).
- ↑ Virginia State Bd. Of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 762 (1976).
- ↑ See, e.g., Llewellyn Joseph Gibbons, Semiotics of the Scandalous and the Immoral and the Disparaging: § 2(A) Trademark Law After Lawrence v. Texas, 9 MARQ. INTELL. PROP. L. REV. 187, 224 (2005).
- ↑ 660 F.2d 41 (1981).
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