dissenting:
My disagreement with the majority is a narrow one. I agree that if there was no abandonment of the Jaycee trademark by the United States Jaycees, the injunction issued by the district court is entirely too narrow, and an injunction as broad as that ordered by the majority is required by the Lanham Act. I also agree that there is no merit to the defendant’s constitutional objection to Lanham Act enforcement.
Indeed my analysis of the latter issue is less complicated than that of the majority opinion. Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948) and Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1935) might well prevent a court from issuing on behalf of the United States Jaycees an injunction prohibiting one of its chapters from admitting women. But those cases do not remove it or any other private discriminator from the protections afforded by the law of torts. Protecting a private discriminator from having his windows broken or his person assaulted involves the state in the reenforcement of his discrimination in a manner far too remote to fall within those authorities. Trademark infringement is a tort, directed not only against the trademark owner but against members of the public who may be confused by it. The trademark is neutral. The private discrimination of the owner of an entirely neutral trademark does not make it an outlaw. Thus I agree that in relying on Shelley v. Kraemer, supra, the trial court erred.
Where I part company with the majority is' in what I think is an overly protective approach on the issue of abandonment. I agree that there is no evidence that the United States Jaycees abandoned their incontestable trademarks nationally. But a more refined test may be appropriate. The Act provides:
A mark shall be deemed to be “abandoned”—
(a) When its use has been discontinued with intent not to resume. Intent not to resume may be inferred from circumstances. Nonuse for two consecutive years shall be prima facie abandonment.
(b) When any course of conduct of the registrant, including acts of omission as well as commission, causes the mark to lose its significance as an indication of origin.
15 U.S.C. § 1127 (1976).
As the majority notes, Philadelphia Jaycees pleaded abandonment as an affirmative defense. Although the trial court did not discuss that defense, facts were found suggesting that, at least regionally, a course of conduct may have occurred by which the mark lost its significance as an indication of affiliation with the plaintiff. It seems to me that abandonment under section 1127(a) *147involves the determination of the trademark owner’s intention, while section 1127(b) sets out a more objective test; what effect has the owner’s course of conduct had upon the likely perception of third parties. If, by a course of commission or omission, a trademark owner has, in a given locality, created a situation in which the public is no longer likely to perceive the mark as exclusively in the owner’s control, abandonment, or to put it another way, regional acquiescence, may be found. See R. Callman, Unfair Competition, Trademarks, and Monopolies, § 79.2 supp. 100-01 (3d Ed. 1970); Note, Abandonment as a Defense in Trade-Mark and Unfair Competition Cases, 30 Colum.L.Rev. 695, 702 & n.41 (1930). An example of regional abandonment is Sheila’s Shine Products Inc. v. Sheila Shine, Inc., 486 F.2d 114 (5th Cir. 1973). That case focuses more on the owner’s intention, however, than on the objective manifestations of his conduct.1 It seems to me that under section 1127(b), objective manifestations of an acquiescence in regional use, and absence of the exercise of control, rather than the owner’s intention, are critical. Circumstances giving rise to an estoppel afford the closest analogy. See Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena, 293 F.Supp. 892 (S.D.N.Y.1965), aff’d, 433 F.2d 686 (2d Cir. 1970), cert. denied, 403 U.S. 905, 91 S.Ct. 2205, 29 L.Ed.2d 680 (1971); J. Gilson, Trademark Protection and Practice § 8.12[12] (1979).
The trial court found that in Philadelphia, Jaycees denotes the Philadelphia organization, not the national organization. He found, moreover, that no legal effort to prevent use of the Jaycee mark by the Philadelphia organization occurred until five years after disaffiliation, that no rival Philadelphia chapter was started, that there was cosponsorship of a Jaycee television show, that there was continued sale of Jaycee paraphernalia, and that the parties continued to correspond. While the trial court did not proceed to relate these findings to regional acquiescence or regional abandonment, they raise for me a real question whether the burden of showing a section 1127(b) abandonment was satisfied. A remand for the trial court’s view on that issue is appropriate. Thus I would vacate the judgment and remand with a direction that if the court does not find abandonment within the meaning of section 1127(b) it should enter an injunction in the form suggested by the majority. If, on the other hand, it should find regional abandonment, it should deny relief against use of the mark by the defendant in Philadelphia. In that respect, the injunction the district judge entered may have been appropriate.
. Sheila’s Shine involved an abandonment defense asserted against a common law trademark owner. While the Fifth Circuit upheld the regional abandonment concept, it also adhered to the traditional common law requirement that intent be proved, see Saxlehner v. Eisner & Mendelson Co., 179 U.S. 19, 21 S.Ct. 7, 45 L.Ed. 60 (1900).