Squeeze Blood From Turnip: Abusing Trademark Law's Morality Provision in the TTAB

Cathay Y. N. Smith, Alexander Blewett III School of Law at the University of Montana

Abstract

Trademark law prohibits the registration of trademarks that are immoral or scandalous. This "Morality Provision"in trademark law has been criticized as being an unconstitutional abridgement of free speech and resulting in inconsistency and other problems at the USPTO examination stage. This essay exposes another problem with the Morality Provision, which is its abuse by third parties in the TTAB. This essay explores why the Morality Provision-and not any other provisions in trademark law-is susceptible to this type of abuse and outlines examples of these abusive cases in the TTAB. These cases show that, in inter partes proceedings in the TTAB, the Morality Provision is often asserted by individuals without any real interest in the proposed trademark, but who instead morally disapprove of the trademark owner or its commercial activities. This type of behavior, where third parties use trademark law and the TTAB to direct their moral outrage at individuals or businesses ofwhich they disapprove, overextends trademark law's jurisprudence, disrupts commerce, and inappropriately drains government resources. Yet as long as the Morality Provision is part of trademark law in the U.S., these cases continue to appear in the TTAB and result in years of contentious and unnecessary litigation. The tendency and ease for the Morality Provision to be abused in this way combined with its potential to violate free speech and its other problems at the USPTO examination stage supports the argument that the Morality Provision is flawed and should be overhauled or removed from trademark law.