By Llew Gibbons, downloadable here and forthcoming in 2 Marquette Intellectual Property Law Review (2005). Here’s the abstract:
In Lawrence v. Texas, the United States Supreme Court held for the first time that morality, standing alone, is not a sufficient basis for prohibitory legislation. Instead, the state must explain how behavior is harmful before it can make it unlawful. The significant post-Lawrence question is whether this holding in Lawrence marks a paradigm shift in constitutional jurisprudence so that teaching of Lawrence may be extended from the bedroom into the commercial marketplace to remove mere moral disapproval as a constitutionally rational basis on which to regulate commercial conduct. Trademark law may at first blush appear to be an unlikely source of law to analyze Lawrence. Nevertheless, some symbols (signs) capable of identifying or distinguishing goods or services, may not serve as trademarks because they may offend some demographic of the citizenry as scandalous, immoral, or disparaging homologues for mere moral disapproval. Since scandalousness in the United States is often loaded with connotations of sexuality, this is of particular interest to the Queer community. Section 2(a) is particularly problematic for the Queer community as the denial of queer marks places the U.S. government’s imprimatur of scandalous and immorality upon the mark (and by extension on the queer community). For non-commercial entities, these marks serve a dual purpose to identify the group for trademark purposes (for example source, origin, or sponsorship) while the mark itself conveys a message of pride to their membership, client base, or to the public at large. Under these circumstances, Lawrence may teach that such laws that stigmatize must receive some level of heightened scrutiny. This is important because our understand of marks has changed. This more recent use of marks as communicative symbols of social identity are inadequately explained using only the juridically accepted law and economics approach. Semiotics provides a better theoretical structure to understand these new uses of marks and to properly credit the role of the new authors in developing the mark’s cultural significance. This Article evaluates section 2(a) of the Lanham Act in the meta-framework of queer marks. First, this Article establishes a theoretical framework to better understand modern trademark usage. The Article then places trademarks in the context of First Amendment jurisprudence, 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 (USPTO’s) authority to reject queer marks under section 2(a) of the Lanham Act. Thus, the teachings of Lawrence are moved out of the bedroom and into the market.