Semiotics of the Scandalous and the Immoral and the Disparaging: Section 2(A) Trademark Law after Lawrence v. Texas

This article explores whether the holding in Lawrence v. Texas may be extended to trademark law. Under section 2(a), some symbols may not serve as trademarks because they may be scandalous, immoral, or disparaging, which is of particular interest to the Queer community. For some, arguably at least a substantial composite of the American people, the relevant test group for scandal or immorality, under section 2(a), the mere existence of queers constitute scandal and immorality and terms of pride and endearment with which they express their sexuality in concrete form are a further example of immorality. Under these circumstances, Lawrence teaches that such laws that stigmatize must receive some level of heightened scrutiny.

This paper argues that trademark function has expanded over time to the point where trademarks are the symbols of identity and need to be studied using semiotics rather than only the law and economics approach. The government's imprimatur of condemnation, in declining to register a mark upon a finding of immoral or scandalous, burdens speech and labels citizens, or at least their speech, worthy or unworthy based upon some arbitrary value system. Without the legal protection enjoyed by other (competing) marks, queer marks may never reach that critical penetration into the culture so that they become objects of cultural currency, thereby becoming building blocks of a queer identity for the post-modern consumer. This Article analyzes these marks under the Equal Protection and Due Process Clauses as authoritatively construed in Lawrence v. Texas, and concludes that a fair reading of Lawrence places substantial limitations on the United States Patent and Trademark Office's authority to reject queer marks under section 2(a) of the Lanham Act.