The Washington Redskins Prevail in Trademark Dispute

Yogi Berra once said: "It's tough to make predictions, especially about the future."  Even Yogi would have gotten this one right.

Yesterday, we wrote about a recent Supreme Court decision which declared that the United States Patent and Trademark Office's "disparagement clause" was a violation of the First Amendment rights of individuals and companies seeking to register as trademarks arguably offensive terms. We predicted that this would open the door to the registration of offensive and derogatory trademarks and that it would end the long legal battle between the Washington Redskins and five Native Americans led by Amanda Blackhorse.

That didn't take long. According to the Washington Post, Blackhorse and her team have given up the fight. They didn't have much choice, as there was no remaining legal ground to stand on after the Tam decision.

It is difficult to convey the complexity of these legal battles focusing on the interplay between the First Amendment and the now-dead disparagement clause, but Kat Chow does an admirable job in her recent NPR article in which she details her interview with The Slants' frontman, Simon Tam:

"As for Tam himself, on the day of the huge ruling he found himself in his back yard in Portland, mowing the lawn. He says it was the first moment he'd had to himself all day, and he found himself crying as the impact of the decision settled in. He couldn't stop thinking about "the people who were vehemently opposed to our case. And I thought in many ways they're right. And then I thought about the people who have struggled against the law. ... I thought, we're right, too." He says he wishes there were more room in the law for nuance. But when decisions like this are put in the hands of officials without any cultural competency, he adds, "ultimately at the end of the day we'll end up losing again and again."

About the Author

Arthur J. DeBaugh

Art DeBaugh focuses his practice on trademarks, marketing/advertising/promotions issues, copyrights, and business and corporate matters. 
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