The Treatment of Immoral, Scandalous, and Disparaging Marks in Trademark Law of the United States and Turkey [Article]

Abstract

A trademark serves as a concise mode of communication from a seller to current or prospective buyers wherein the seller signifies an endorsement of certain goods or services. This sets them apart from similar goods or services provided by competitors. However, trademarks often do not simply identify the source of a product or service, but also to convey a broader message. This creates an intersection between trademark law and the fundamental right of freedom of expression and presents challenging legal, ethical, and societal concerns that can differ significantly from one jurisdiction to another. In the United States, these concerns resulted in the cancellation of registration bars for immoral, scandalous, and disparaging marks. After more than five decades of the Lanham Act’s operation, the rule that bars disparaging marks was found unconstitutional in 2017 under the Supreme Court’s decision in Matal v. Tam. Then, the rules barring immoral and scandalous marks were found unconstitutional in 2019 by the Supreme Court in Iancu v. Brunetti. Both decisions cited viewpoint discrimination as a violation of the First Amendment’s Free Speech clause. By contrast, in Turkey and the European Union (EU), the registration bar for marks that are contrary to public policy and accepted principles of morality is still in effect, even though there have been some free speech concerns. This legal landscape offers an opportunity to perform a comparative analysis between jurisdictions and to observe how diverse legal systems address the complex interplay between commerce, speech, and societal norms. Through a detailed examination of legislative frameworks, judicial interpretations, and policies in the United States and Turkey, this paper embarks on a comparative analysis of the treatment of immoral, scandalous, and disparaging marks within these two jurisdictions. This paper makes numerous proposals concerning both the approaches of the United States and Turkey, considering policy and the results of empirical research. There are five sections. The first section provides an introduction; the second section concerns U.S. trademark law; the third section reviews Turkish trademark law; the fourth section is a comparison of these jurisdictions; and the final section offers proposals. The comparison includes a discussion of international agreements concerning the treatment of marks considered immoral, scandalous, or disparaging and includes examples from European practice.