(Illegal) Drugs And Trademarks

After thinking more about the recent decision by the U.S. Patent and Trademark Office to (at least initially) refuse federal registration status to the mark SLANTS used by a band of performers of primarily Asian descent, (see May 6, 2915 blog post "Disparagement, Political Correctness and the First Amendment"), I thought that, just for fun, I would check whether the relatively recent legalization of marijuana in a couple of states has led to rash of MARIJUANA mark filings. Yup.

Just a few of the over 100 active pending MARIJUANA trademark applications include:

MARIJUANA WEEKLY

MARIJUANA MAX WILD ZOMBIE

MARIJUANAVILLE

THE MARIJUANA MERCANTILE

MARIJUANA PHARMACEUTICALS PHARMACEUTICAL GRADE MEDICAL MARIJUANA

MEDICAL MARIJUANA BUSINESS LAWYERS

Really? The MEDICAL MARIJUANA BUSINESS LAWYERS registered for attorney services in Florida? The irony is astounding to me.

The "other half" of the test for refusing marks under Section 2(a) of the Lanham Act, in addition to a finding that a mark is "disparaging," is the refusal of registration of a mark on grounds that it is "immoral or scandalous." As defined by the courts, scandalous has been held to mean "shocking to the sense of propriety, offensive to the conscience or moral feelings or calling out for condemnation. " In re McGinley, 660 F.2d 481, 484 n.6, 211 USPQ 668, 673 n.6 (C.C.P.A. 1981),

In fact, historically, famous marks have been entitled to protection from dilution by marks that are not confusingly similar, where the use amounts to tarnishment of the distinctive qualities associated with the mark. Among the examples of unlawful tarnishing uses is use of a famous mark in connection with illegal drugs, as demonstrated in every trademark textbook and treatise I have ever seen by use of the famous stylized "Coca-Cola" trademark as shown below:

Certainly if the marks SLANTS and REDSKINS are disparaging then shouldn't MARIJUANA marks be held to be scandalous or immoral, at least when used in connection with...