Here are the materials in Elem Indian Colony of Pomo Indians of the Sulphur Bank Rancheria v. Ceiba Legal (N.D. Cal.):
Lower court materials here.
Lanham Act
Federal Court Dismisses Lanham Act Claim against Poarch Band
Here are the materials in Virtualpoint Inc. v. Poarch Band of Creek Indians (C.D. Cal.):
Pro-Football Inc. v. Blackhorse Cert Petition
Here.
Question presented:
The “disparagement clause” in § 2(a) of the Lanham Act bars the registration of a trademark that “may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” 15 U.S.C. § 1052(a). The questions presented are:
1. Whether § 2(a)’s disparagement clause violates the First Amendment.
2. Whether § 2(a)’s disparagement clause is impermissibly vague, in violation of the First and Fifth Amendments.
3. Whether the government’s decades-long delay between registering a trademark and cancelling the registration under § 2(a)’s disparagement clause violates due process.
The Fourth Circuit matter is still pending. This is an effort to jump ahead of the process to join another petition currently pending captioned Lee v. Tam. We posted about that Federal Circuit decision here.
Jasmine Abdel-Khalik on Disparaging Trademarks
Jasmine Abdel-Khalik has posted “Disparaging Trademarks: Who Matters,” published in the Michigan Journal of Race & Law. Here is the abstract:
For more than a century, non-majority groups have protested the use of trademarks comprised of or containing terms referencing the group — albeit for various reasons. For those trademarks that are offensive to targeted groups, some may argue that the market will solve. In other words, some may assume that purchasers in the marketplace will respect the objection, there will be insufficient purchases of the product under the mark, and the mark will disappear. However, objections raised by smaller populations in the United States often fall on deaf ears, and the marks continue to be used in the marketplace. The Washington NFL football team trademarks are an example.
Under the 1946 Lanham Act, Congress added a prohibition against registering disparaging trademarks, which could offer protection to non-majority groups targeted by the use of trademarks offensive to members of the group. The prohibition remained relatively unclear, however, and relatively rarely applied in that context until a group of Native Americans petitioned to cancel the Washington NFL team’s trademarks as either scandalous (meaning offensive to the general population) or disparaging (meaning offensive to the referenced group). In clarifying the appropriate test for disparaging, however, the decision makers have overly analogizing the two prohibitions, rendering the disparaging registration prohibition less effective in protecting non-majority groups from offensive trademarks.
This Article seeks to clarify the history, purpose, and utilization of the disparaging registration prohibition. In so doing, the Article also seeks to detangle the scandalous and disparaging registration prohibitions and refocus the disparaging registration prohibition on a broader and necessary purpose, which is to protect non-majority voices from the numerous harms caused by stereotyping and by rendering painful terms commonplace but no less painful.
Federal Court Orders Cancellation of Washington Football Team’s Trademarks Registration
Here are the materials in Pro-Football, Inc. v. Blackhorse (E.D. Va.):
53 DCT Order on Briefing Schedule
56 Pro-Football Motion for Summary J on Constitutional Claims
71 Blackhorse Motion for Partial Summary J
106 Blackhorse Second Motion for Partial Summary J
118 Blackhorse Reply in Support of 71
119 Pro-Football Reply in Support of 56
126 Blackhorse Reply in Support of 106
127 US Reply in Support of 109
128 Pro-Football Reply in Support of 100
Prior posts here, here, here, here, and here.
TTAB materials here.
Federal Circuit to Decide En Banc if Lanham Act § 2(a) Banning “Disparaging” Marks is Constitutional
Washington Football Team Argues Lanham Act/TTAB Decision Violates First and Fifth Amendments
Here is the opening brief in Pro-Football Inc. v. Blackhorse (E.D. Va.):
53 DCT Order on Briefing Schedule
56 Pro-Football Motion for Summary J on Constitutional Claims
According to the briefing schedules, briefs are going to be flying fast and furious. We’ll try to keep up.
Prior materials on the federal government intervention here, and the now-denied motion to dismiss here.
CA9 Decides Philip Morris v. King Mountain Tobacco
Here is the opinion from the Ninth Circuit denying that a colorable claim to tribal court jurisdiction existed in this trademark violation issue. And here are the briefs:
Fortunet v. Arizona Gametech Corp. — Class II Pull-Tabs Determination
This case has some discussion of Class II gaming/pull tabs in the context of an alleged Lanham Act violation.
False Advertising Claim against Tribal Smokeshop
In Gristede Foods v. Unkechauge Nation/Shinnecock Trading Post, the district court refused to dismiss a Lanham Act claim against a tribal retailer. The plaintiff alleges that the retailer promised tax-free sales, but didn’t deliver. This is the second motion to dismiss denied by the court.
Turtle Talk 
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