Law 760
Trademarks and Unfair Competition
Statutory Drafting Exercise #1
This assignment is mandatory, but ungraded.
Section 2 of the Lanham Act (reprinted in the Casebook at pages 1041-42) lists a hodgepodge of statutory bars prohibiting the trademark or service mark registration of specified subject matter. The current section is poorly organized, and seems to vindicate a variety of different, sometimes conflicting, policy goals. Many of the bars were enacted in 1946; Congress has added additional bars in the intervening years. Some of the limitations may have made sense in 1946 but don't seem useful to a 21st century trademark registry. Others continue to do important work. Some of the bars are poorly worded; others, the Supreme Court has ruled, fail to pass muster under the 1st Amendment.
Decide what subject matter should, in a well-designed trademark system, be barred from registration for policy or other reasons. Draft a replacement for section 2 of the Lanham Act that would unambiguously accomplish that result. Unlike the current section, your replacement draft should be well-organized, expressed clearly, and shorter than 300 words. You may work alone or in teams of two, three, or four. If you work as part of a team, be sure that you and your teammates agree on the changes that the draft would make to current law.
Your draft must reflect actual statutory language. Do not explain what it is you are trying to do -- the effect and intent of your new section 2 should be clear from the statutory language that you propose. You should anticipate that the language of your draft may be both publicly performed and publicly displayed in class, and that one or more of your classmates will be asked to explain what enactment of your section 2 would accomplish, and then criticize its weaknesses and praise its strengths.
Do not include your name(s) anywhere on the assignment. Make up an arbitrary five-digit number for your draft. Type the number at the top of the page. Save your assignment as a pdf file under a filename of your-five-digit-number.pdf. (I.e., if your random number is 90184, your filename should be "90184.pdf.") Upload a copy of your pdf file as your answer to the Qualtrics survey question posted here. Your upload will be anonymous. Print out a copy of your assignment and bring it with you to class on Tuesday, October 8. If you are working in a team, make sure that every member of the team brings a copy to Tuesday’s class. You should each save another copy for your own reference.