Thursday, November 23, 2017

Francine Ward and Stephanie Quick

Francine Ward and Stephanie Quick, Offensive Marks: the Policing of Trademarks in a Diverse World, 5 No. 4 Landslide 52 (March/April, 2013)(51 Footnotes Omitted)


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. 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 ยง 2(a). 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. The district court's decision was upheld on appeal. 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.

The Washington Redskins saga presents several interesting questions concerning trademarks and diversity:

  • What happens when a mark offends a group of people based on their race, sex, ethnicity, nationality, religion, or sexual orientation? 
  • What legal standards are used to determine whether a mark is disparaging to a particular group?

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