Offensive Marks: The Policing of Trademarks in a Diverse World

Vol. 5 No. 4

By

Francine Ward is a San Francisco area business and intellectual property attorney, with a focus on copyright, trademark, publishing, and social media law issues. She can be reached at info@fwardattorney.com. Stephanie Quick is an associate in the Milwaukee office of Foley & Lardner LLP, where she is a member of the intellectual property litigation practice. She can be reached at squick@foley.com.

The Washington Redskins football team is known for its fierce battles on the playing field. However, for the last 20 years, the team has faced another series of battles—in the courtroom. At the heart of the matter is whether the team can continue to use the name REDSKIN. Some Native American groups and their supporters have argued that REDSKIN is an offensive racial slur. In Harjo v. Pro-Football Inc., a group of Native Americans sought cancellation of a number of the Washington Redskins’ trademarks on the basis that the marks were scandalous and disparaging.1 The Trademark Trial and Appeal Board (TTAB) cancelled the trademarks, finding that the marks may disparage Native Americans and may cast Native Americans into contempt or disrepute in violation of Lanham Act § 2(a).2 Pro-Football successfully appealed the TTAB’s decision in federal district court, where the court held that the suit was barred by the doctrine of laches and that the finding of disparagement was not supported by substantial evidence.3 The district court’s decision was upheld on appeal.4 Currently pending before the TTAB is another challenge to the Redskins’ trademark registrations, in which the petitioners are hoping that the laches defense will be unavailable.5

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