trademark

Christine Haight Farley on Trademark Law and the Washington Football Team’s Trademarks

Matthew L.M. Fletcher1 Comment

Here.

An excerpt:

The term used by the Washington football team has been demonstrated by overwhelming linguistic and historical evidence to constitute a disparaging epithet insulting to Native Americans.  Many Native American organizations, including the National Congress of American Indians, the National Indian Education Association, the Native American Journalists Association, the Native American Rights Fund, the Morning Star Institute, the International Indian Treaty Council, and the National Indian Youth Council, have publicly and vociferously opposed the continued use of the term in trademarks or as the name of sports teams.  The director of the Smithsonian National Museum of the American Indian has said he considers that name to be the most offensive name in current use.  The trademark office tribunal was satisfied by survey evidence that showed that 37 percent of the Native Americans surveyed found the word the team uses as their name to be offensive.

Havasupai prevails in WIPO Arbitration regarding the Havasupaitribe.com website.

Matthew Campbell

The arbitration decision can be found here.  The Respondent has filed a complaint in federal court to stay the arbitration decision, which we will try to obtain.  A snippet of the arbitration decision:

The Complainant is an Indian Tribe (termed a “Native Sovereign Nation” in more recent governmental documents) that is recognized by the Federal Government of the United States of America. The Complainant occupies a tribal reservation in and around the Grand Canyon of the Colorado River in the State of Arizona. It is undisputed that the Complainant is a legal entity that is competent, among other things, to engage in commerce and to own and use trademarks in commerce.

Since the 1950s, tourism has been the Complainant’s principal economic activity, commercialized through tribally owned enterprises. Despite the fact that there are no roads leading to the portion of the tribal reservation where world-famous waterfalls are located, some 20,000 tourists arrive annually on foot or on horseback, or by helicopter. The Complainant’s “Havasupai Tourism Enterprise” provides tourism services such as food, lodging, and guided horseback excursions and operates the “Havasupai Lodge”, the “Havasupai Tribal Café”, the “Havasupai Trading Post”, and campgrounds. The Complainant’s official website is found at “www.havasupai-nsn.gov”. . . .

The Respondent has since used the Domain Name for commercial gain, for paid advertising relating to Grand Canyon tours and lodging and other services, some of which compete with those offered by the Complainant. The Respondent has fostered a likelihood of confusion with the Complainant’s marks, by using the same Domain Name incorporating those marks that was formerly used by the Complainant itself, misleadingly displaying the Complainant’s name on the associated website and the Complainant’s contact information on the “Contact” page of that website, and providing no identification of the Respondent or disclaimer of affiliation with the Complainant. The Panel concludes that these facts fit the paradigm of bad faith described in the Policy, paragraph 4(b)(iv), as an attempt to mislead Internet users for commercial gain.

Ninth Circuit Briefing in Shingle Springs Miwok v. Caballero

Matthew L.M. Fletcher1 Comment

Here:

Caballero Opening Brief

Shingle Springs Answer Brief

Caballero Reply Brief

Here is the issue, according to the tribe’s brief:

Appellee Shingle Springs Band of Miwok Indians (hereinafter, “Tribe”) has operated its federally recognized tribal government under the name “Shingle Springs Band of Miwok Indians” (the “Mark” or the “Tribe’s Mark”)[FN1] for over thirty years. During this time the Tribe provided governmental and educational services to its members and the public and its Mark became well known. Appellant Cesar Caballero is not a member of the Tribe, but identifies himself as a person of “Miwok” ancestry. In 2008, after he learned the Tribe planned to open a casino, he began to do business under the Tribe’s Mark and represent to third parties, through local and federal government filings, that he was the “Chief” and “Tribal Historian” of the “Shingle Springs Band of Miwok Indians.” These representations were false.

Cert Petition in In re Shinnecock Smokeshop

Matthew L.M. Fletcher

So much Shinnecock news lately … In re Shinnecock Smokeshop Cert Petition

An excerpt:

The TTAB affirmed the EA’s refusal to register Petitioner’s marks on different grounds than that relied upon by the EA in the Final Office Action. The Federal Circuit affirmed. Petitioner showed below that his Tribe is obviously not a “Person” or “Institution,” and a refusal to register under Section 2(a) of the Trademark Act, under either ground was error. Further, Petitioner presented a documented prima faciecase of discriminatory pattern of practice of the USPTO in previously, and even presently, granting trademark registrations to non-Native Americans with similarly situated marks.