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

100 Pro-Football Cross Motion

106 Blackhorse Second Motion for Partial Summary J

109 US Motion for 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

161 DCT Order

Prior posts here, here, here, here, and here.

TTAB materials here.

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.

Trademark Trial and Appeal Board Cancels Trademarks for Washington Football Team — Updated

Here is the news coverage.

Link to the decision here.

from the PTO website:

Read the full decision

Fact sheet for media

Official USPTO statement regarding Blackhorse v. Pro Football, Inc. decision

Guest Post — Anthony Jones on the Federal Circuit’s Recent Trademark Decision and Its Import for the Washington Football Team’s Nickname

Patently-O commentator Mark Bartholomew points to this Federal Circuit case. The issue is when a trademark may be denied for containing “matter which may disparage” a group of persons. At issue in this case is a proposed mark of STOP THE ISLAMISATION OF AMERICA which was denied for violation of this disparagement provision. The Federal Circuit approved a two-prong test. Bartholomew further states:

  • “Under the first prong of that test, a court must determine the likely meaning of the mark in question. Under the test’s second prong, the court examines whether the likely meaning refers to an identifiable group and, if so, whether that meaning is disparaging to a substantial composite of that group.”
  • “The stakes are high here because the Federal Circuit is the typical route for appeals of [Trademark Trial and Appeal Board] decisions, and a highly anticipated decision from the TTAB on disparagement involving the WASHINGTON REDSKINS mark is due soon.”

There ought to be little doubt that the term “Redskins” refers to an identifiable group – i.e., American Indians.  As to the issue of disparagement, the Federal Circuit has endorsed a rather permissive evidentiary standard, which allowed for consideration of anonymous blog posts to show public perception and reaction to a proposed mark, and statements from members of the disparaged group stating concern over such disparagement.  One key issue that the Court did not address is what constitutes a “substantial composite” of the referenced group.

Update on New and Newer Redskins Trademark Cases

From The BLT:

The latest effort to strip trademark protection from the name of the Washington Redskins is now before the U.S. Patent and Trademark Office. Native Americans, represented by Philip Mause, of counsel at Drinker Biddle & Reath, filed protests Feb. 24 against six pending trademark applications for the Redskins name, some dating as far back as 1992. The trademark applications were filed by Pro Football, inc., the owner of the Redskins, and other entities including the Washington Redskins Cheerleaders in hopes of protecting the trademark for use on clothing and other souvenirs and paraphernalia.

According to Mause, the applications had been “held in abeyance” while the long-running litigation against the Redskins filed by Suzan Harjo and others was underway. As we reported here in November, the Supreme Court denied review of a lower court decision that had rejected the Harjo challenge to existing Redskins trademarks.

The new protest through the trademark office’s administrative process makes many of the same arguments that the Redskins name is disparaging and therefore not eligible for trademark protection. “The use of ‘redskins’ and other so-called Indian names and images in sports are offensive and demeaning to Native American peoples,” the protest letter states. In an interview, Mause said the letters were filed at an early stage in the examination process that was reopened after the Harjo litigation ended. As a result, Mause said the issues of laches — whether the challengers waited too long — should not come into play. Continue reading