Tag Archives: Redskins

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

indian.jpg

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…

The ACLU’s strange bedfellows

Redskins Wrong But LegalHere’s some news:  The American Civil Liberties Union says the Redskins are wrong, damned wrong — but they’ve got every right in the world to be that way.

They even filed an amicus brief in the District Court in support of the Redskins’ right to be wrong.  Amicus briefs at the trial level are quite unusual.

The ACLU’s brief, and an earlier blog post on its site, both make explicit reference to the appeal of the PTO’s rejection of The Slants’ application to register their trademark, THE SLANTS, and to the inconsistency of the PTO in permitting “reappropriation” of derogatory terms when it comes to certain categories but not others: Read More…

Trademarks, the Redskins and the constitution

The NFL’s brief on the issue you’ve read about everywhere, including here, is now out and about (courtesy of John Welch):

NFL v Blackhorse – The Redskins Brief

Indian givers (part 3)

Redskins British Style

Part one and part two of this three-part post were published earlier this week.

When the PTO’s decision revoking the REDSKINS registrations was affirmed by the TTAB, I asked, as others — including the NFL — have asked, whether such sociological (not to say historicist)  time travel concerning the REDSKINS mark comports with constitutional due process.  It’s a serious question.

Indeed, it seems that when it comes Section 2(a), pretty much anything goes, procedurally, at the PTO, as long as the outcome is “no.”  There’s one category of exceptions, as The Slants noted on their appeal.  And it’s the exception that proves the rule.  It’s hard to see how it can be otherwise when slurs referring to what was once called lifestyle choices have been allowed registration while those referring to ethnicity are not.

Could one answer by saying that the statute doesn’t prohibit disparagement of behavior or, even, perhaps, sexual identity, but it does prohibit disparagement of ethnic groups?

There’s only one problem with that.  Here’s the statute (emphasis added, obviously):

1052. Trademarks registrable on the principal register; concurrent registration No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it–

(a) Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute . . .

So, what are we talking about here?  The relevant language is “disparage . . . persons.”  Are ethnic groups “persons”?  Are any groups of persons, persons?

Not according to TMEP 1203.03(a), which explains, based on the cases, that “Section 45 of the Act, 15 U.S.C. §1127, defines “person” and “juristic person” as follows:

The term “person” and any other word or term used to designate the applicant or other entitled to a benefit or privilege or rendered liable under the provisions of this Act includes a juristic person as well as a natural person. The term “juristic person” includes a firm, corporation, union, association, or other organization capable of suing and being sued in a court of law.

So what gives?  This definition of “person” doesn’t seem to include races, colors, “peoples,” or “nations” in the ethnic sense.

Read More…