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Abstract

The monopoly provided when trademark protection is given to a religious name is in direct tension with an individual’s right to freedom of religion. One’s ability to freely use a particular religious name in spiritual practice, and to identify one’s belief system with the words that commonly describe it, are weakened when trademark law designates just one owner. This Article explores the impact of the impending issuance of brand new top-level domains utilizing religious names, and how the providing of an exclusive right for one entity to govern over a religious top-level domain, in addition to the existence of a trademark monopoly held upon the same name, may affect the vigor of freedoms of religion and speech. This Article argues that there should be a presumption against trademark protection of religious names in order to reaffirm constitutional freedoms, and that the implementation of such a presumption within U.S. law will have the additional benefit of improving an imperfect judicial framework for analyzing trademark cases involving religious names. The Article concludes by proposing some specific rules for implementation of such a presumption, as well as some comparative remarks juxtaposing the solution proposed by this Article with public policy objectives and the discourse within the international community.

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