In order to protect the first amendment, the Lanham act needs to be interpreted as limiting the immoral or scandalous provision to obscenity

 Aiding the Fight the judicially accepted definition of the phrase, marks depicting obscene material naturally fit the bill. By declaring the immoral or scandalous provision unconstitutional, and refusing to limit it to obscenity, the majority blatantly ignored the definitional match and instead opened the door for the proliferation of discomforting marks. As referenced in Part IV.A supra, though not a point Brunetti presupposes proper application of the immoral or scandalous provision by the USPTO historically. In rejecting the obscenity limitation, the majority relied on the fact that provision involved blasphemous marks touching on religion, which were not obscene At the same time, the majority . determination is made in the context of contemporary attitudes, the concept of what is actually immoral or The fact that examiners used the provision to strike down religious words or symbols during the 1930s,164 a period of religious involvement in the lives of those affected by the Great Depression,165 does not mean this application was proper in and of itself at the time and shouldnt control today. Indeed, in In re Riverbank Canning Co., the first case dealing with the immoral or scandalous provision for rejecting anything, the fact that the USPTO, after rejecting the mark twice, 2008 signals this change.Of course, the movement away from barring registration of religious words or symbols coincides with a shift in contemporary attitudes. majority of [US]PTO rejections under the immoral Similarly, the focus of the cases which the Federal Circuit has reviewed under the immoral or scandalous provision is the same— sex.172 It is difficult to comprehend the provision to obscenity when USPTO examining attorneys, claiming to act on contemporary attitudes, primarily reject marks related to sex. to prevent the registration of even the most patently obscene Such a conclusion is inconsistent with the accepted purpose of the immoral or scandalous provision. As previously mentioned, no legislative history exists to discern the Congressional intent in passing the immoral or scandalous provision.175 Still, however, the principal of legislative inaction suggests Congress consented to the propriety; disgraceful; offensive; disreputable; . . . giving offense to the conscience or moral feelings; . . . or calling out If anything falls within this definition, it is obscene material. By refusing to limit the immoral or scandalous provision to obscenity, the Federal Circuit has exposed the public to potential marks much worse than anything anticipated by the framers of the immoral or scandalous provision.