Tag Archives: Redskins

Free speech about trademarks and free speech

Speech about trademarks, trademark registrations and free speech have bubbled so verily to the top of the public imagination that it’s all over the official organ of free speech, the New York Times!

Well, okay, that’s a bit much, but it sounded good for a second, no?

Here’s what I’m talking about.  First, there was this:

That tweet gave birth, first, to a nice little conversation on Twitter involving Christine Haight Farley, who has definite and well-articulated views on the matter and ones which are worth hearing, and Marc Randazza, regarding whose virtually completely opposite opinion virtually the same can and hereby is said as well. But this is just the tip of the Times-y iceberg that’s forming. Read More…

“Indian givers” (part 1)

Originally posted 2015-02-16 17:37:02. Republished by Blog Post Promoter

Redskins-Logo-Wallpaper-03For years I’ve been complaining that so much of the excitement in intellectual property law jurisprudence these days involves policy-making by judges and the PTO.

Funny thing!  So, as it happens, I was recently quoted in an article in the World Intellectual Property Review on the topic of our old favorite, the Redskins trademark case.  And it went like this:

Few intellectual property lawyers in the US (and elsewhere) will need reminding that professional American football team the Washington Redskins was stripped of six trademarks last year after a decision by the US Patent and Trademark Office’s Trademark Trial and Appeal Board.

The term ‘Redskin’—a slang word for a Native American and variations of which were used in all six trademarks—was deemed offensive.

In response to the ruling, the team filed a lawsuit against the Native Americans who initiated the challenge, in an attempt to keep its trademarks. The Native Americans, unable to dismiss the suit, will face off with the club at the US District Court for the Eastern District of Virginia this year.

Ron Coleman, partner at US law firm Goetz Fitzpatrick, says: “The drafters of the Lanham Act [the US’s federal trademark statute] never considered whether a registration could be revoked retroactively upon a finding that, when applied for, the trademark was not eligible for registration because late-coming petitioners succeeded in proving that it was derogatory of an ethnic group.”

Yes, I said that.  Now, a few things, both of which were pointed out by me in a post I wrote around the same time I was contacted by that reporter.  Well, first, one thing that was pointed out by John Welch:  the writer’s statement that “the Washington Redskins was stripped of six trademarks last year ” is inaccurate:  The Redskins were stripped of registrations, not trademarks.  They can still, and will still, sue your pants off for pretty much everything trademarky they could sue your pants off for before.
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Secondly, yes, Congress never considered that stuff I said.  The whole of my argument, per my blog post, is this — indulge me here; there’s more to come:

While the goal of avoiding offense by government actions such as trademark registration is laudable, achieving that goal seems more than ever to embroil agencies and judges in deciding highly-politicized and sensitive issues that are arguably not appropriately determined by either. Adding “time travel” to their task only makes it more onerous. . . .

[T]he policy question of whether a registration should be revoked retroactively, after decades of use by the registrant following allowance and evidently with no time limit — as long as the evidence is found to support a contemporaneous finding of disparaging meaning — is probably one that Congress should address. Its application in this case, regardless of the merits under the standards applied by the TTAB, is certainly troubling.

Is what I said.  So now, I wonder, what should I say about this revolting development?: Read More…

“Indian givers” (part 2)

Originally posted 2015-02-17 08:00:11. Republished by Blog Post Promoter

Washington-Fredskins

[Note: This post was written before the December 22, 2015 Federal Circuit opinion in In re Tam, and, of course, subsequent developments.]

Yesterday I ended part one of this post about a proposed law to outlaw any trademark registration rights for the NFL’s Washington Redskins with this question:  Given the offensive nature of the trademark by all accounts and the strong  “political” (not, strictly speaking, congressional) support for such a measure, why didn’t Representative Mike Honda go all the way and propose outlawing any federal enforcement, including in the judiciary and including with respect to common law marks, state-granted registrations or any claim sounding in unfair competition, of any REDSKINS trademark?  Why stop at half-measures such as prohibiting past and future registrations?

I can think of at least three possible reasons.   Read More…

Redskins redux 2

Originally posted 2014-02-27 18:10:01. Republished by Blog Post Promoter

I didn’t have a chance to mention that last month, the order denying the legal challenge to the Washington Redskin’s use of its trademark American Indian logo was upheld.

Now I have a chance!

And do the unhappy Indians have a chance?  They think they do.

UPDATE: They don’t (via @ABAJournal).

43(a)? It’s not for me to say

CAFCI’m kind of tired of In re Tam also.  But I have been a bit surprised that there has not been a more discussion, or as far as I can tell, hardly any, of a proposition pushed by the “amicus” brief filed by INTA, the International Trademark Association, on the en banc appeal — and how that proposition was most definitively rejected by the Federal Circuit in its December 22, 2015 opinion.

That’s the question of whether a would be trademark registration, barred by Section 2(a) on the grounds of disparagement (or, perhaps, any grounds), can still find some solace — or at least a federal forum for enforcement — by making a claim under 15 U.S. § 1125(a), otherwise known as Section 43(a) of the Lanham Act, which prohibits any false designation or description regardless of whether a mark is registered.

I use the scare quotes around “amicus” because with amici like this… well, in fact, I can and will say very little at this procedural moment, but will let the papers speak for themselves and invite the learned community to be heard.

First, some background on the INTA part of it, which may or may not have anything to do with the court’s decision to address Section 43(a), but is a story in and of itself.  INTA does not get involved as an amicus unless it is asked.  Read More…

So, how about those Redskins?

I’ve been writing about the Redskins and the tribulations — and, as it turns out, trials — of their REDSKINS trademarks since long before that first post about that rock band in Portland — a blog post that presented me with the opportunity to actually change the law I’d been kvetching about in those early Redskins posts, though I hardly thought that was the assignment I was accepting at the moment.  More on that later.

Still and all, that’s not something a blogger gets to do every day.

Next step? I have no clue.

Next step? I have no clue.

So, now, how about those Redskins?

Most of the reporters I spoke to after the opinion in In re Tam came out last week wanted to know how I thought our case would affect the NFL’s case.  Though we had very pleasant conversations, and often very long ones, the fruits of these discussions were seldom reflected in what was published, to put it mildly, if they were reflected at all.  This is the way of journalism, of course.

The good thing is that if I have something to say I can say it here.  I do, and based on what I’m seeing out there, I think it should be said, because I don’t believe that, so far, anyone else is saying it.

Again, first, let’s step back to when the original TTAB decision was issued in the Redskins appeal of the PTO’s unprecedented cancellation of its REDSKINS registrations.  I did post here on the topic, but gingerly, because our appeal of the denial of THE SLANTS registration was still working its way through the system.  The heart of what I wrote was this: Read More…

The Redskins appeal brief in Pro-Football v. Blackhorse

Laws don’t kill free speech, legislators do

Another bad season for the Redskins

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Which side is he on?

The Eastern District of Virginia has ruled (link to opinion here) on the summary judgment motions in Pro Football v. Blackhorse in the NFL’s appeal to the District Court of the TTAB’s cancellation of the REDSKINS trademark registration.

The opinion is 70 pages long.  Spoiler alert:  It doesn’t come out good for the Redskins.

There will be plenty of commentary on this, an doubtless an appeal, but you’re not going to get that commentary from me.  Not here, anyway, and not before we finish up our own appeal business.

UPDATE: Christine Haight Farley is loving it; here’s reporting by the World IP Review.

WAIT, THERE’S MORE: Analysis from John Farmer.  John Welch:  “An impressive opinion.”

 

Friends of the court, friends of the First Amendment

The approved and publishable amicus briefs in the appeal regarding the trademark registration of THE SLANTS are trickling in. Certainly interesting to see who is saying what.  So far, they all seem to be on the side of The Slants, though interestingly the INTA amicus brief does not take a position on the First Amendment issue (maybe because that’s usually a subject raised by defendants in infringement cases?) but instead addresses, as is appropriate given INTA’s level of trademark expertise, the issue of 43(a) of the Lanham Act.  INTA urges, understandably, that the constitutionality question “does not turn” on the availability or interpretation of 43(a) protection for unregistered marks.
The Slants - Chinatown Dance Rock
What do we have?  Here’s the amicus brief of Public Knowledge, styled as “in support of neither party”; here is Pro Football, Inc.’s (i.e., the Washington Redskins’) amicus brief very much in support of appellant; and now comes the First Amendment Lawyers Association (that’s Randazza and friends).

Here’s one we hadn’t counted on:  a submission by the Rutherford Institute together with the Cato Institute.  Cato’s blog post, authored by Ilya Shapiro, is here; the Cato / Rutherford amicus brief is here.

Hey, what happened to the ACLU, which, formerly (you should pardon the expression) confused, has now seen the light on this business?  Evidently the dog ate their ECF registration, and the ACLU amicus brief was filed a day late — today — along with a motion seeking permission to do that, for reasons set out therein.  Enough said — they are our friends (now) and, unlike those stinkers at Public Knowledge, say so right on the cover of their submission.

Okay, and what about those guys over at Public Knowledge?   Read More…