The Section 2 Bars: Surnames, Geography, Deception, and the First Amendment
By Casey Scott McKay ·
Section 2 of the Lanham Act, 15 USC 1052, is where most trademark applications die, and it does not treat all failures alike. This article walks the whole statute: the 2(a) bars on deceptive matter and false suggestion of a connection, the collapse of the disparagement and scandalousness clauses in Tam and Brunetti, the narrow 2(b) bar on flags and official insignia, the 2(c) consent requirement for names of living individuals as the Supreme Court left it in Elster, the geographic bars of 2(e)(2) and 2(e)(3) after In re California Innovations, the surname bar of 2(e)(4) and the Benthin factors, and the functionality bar of 2(e)(5). It explains the architecture that matters most in practice, which refusals acquired distinctiveness under 2(f) can cure and which are permanent, and why the same word can be a nuisance under one subsection and a death sentence under another. It tells the leading cases as stories, maps the recurring fact patterns examining attorneys actually cite, and marks the places where the doctrine is genuinely unsettled after Elster. Written for applicants and their counsel reading a refusal for the first time, it leaves the step-by-step response mechanics to the companion guide and checklist.
IP and Technology > Trademarks | Article | Published 21 March 2024 - Updated 21 December 2025 | Casey Scott McKay - marksy.us
Summary. Section 2 of the Lanham Act, 15 U.S.C. § 1052, is where most trademark applications die, and it does not treat all failures alike. This article walks the whole statute: the 2(a) bars on deceptive matter and false suggestion of a connection, the collapse of the disparagement and scandalousness clauses in Matal v. Tam and Iancu v. Brunetti, the narrow 2(b) bar on flags and official insignia, the 2(c) consent requirement for names of living individuals as the Supreme Court left it in Vidal v. Elster, the geographic bars of 2(e)(2) and 2(e)(3) after In re California Innovations, the surname bar of 2(e)(4) and the Benthin factors, and the functionality bar of 2(e)(5). It explains the architecture that matters most in practice — which refusals acquired distinctiveness under 2(f) can cure and which are permanent — and why the same word can be a nuisance under one subsection and a death sentence under another. It tells the leading cases as stories, maps the recurring fact patterns examining attorneys actually cite, and marks the places where the doctrine is genuinely unsettled after Elster. The step-by-step response mechanics live in the companion guide and checklist.
Keywords: section 2 refusal · lanham act section 2 · 15 usc 1052 · primarily merely a surname · benthin factors · geographically descriptive · geographically deceptively misdescriptive · deceptive matter · false suggestion of a connection · matal v tam · iancu v brunetti · vidal v elster · section 2(c) consent · flags and insignia · functionality refusal · section 2(f) acquired distinctiveness · supplemental register · california innovations
This is premium Marksy content — the full document is available to subscribers.