Wednesday, 19 August 2015 15:51

NFL Continues Challenge of "Disparaging" Marks in the Fourth Circuit

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Are you ready for some football? In the midst of preparing for football season, the National Football Association ("NFL") continues its fight to overcome cancellations of the Washington Redskins' trademarks. The NFL is appealing a district court decision to the Fourth Circuit.

Last month, a district court in Virginia affirmed the Trademark Trial and Appeal Board's ("TTAB") decision.  The TTAB, the Patent and Trademark Office's body responsible for hearing cases involving trademarks, determined the mark "Redskins" may be disparaging under Section 2(a) of the Lanham Act, which we discussed earlier on our blog. Section 2(a) states that the Patent and Trademark Office will not register a mark that "may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." The NFL asserts that a ban on "disparaging" trademarks violates First Amendment and Fifth Amendment protections.

A similar case that may affect the Fourth Circuit's decision is In Re Tam, which is currently before the Federal Circuit. The Federal Circuit is considering en banc the TTAB's refusal to register the mark "The Slants" for a name of a band. The refusal was also based on Section 2(a) because the name may disparage Asian-Americans. The band, which is comprised of Asian-American members, asserts that the name is being used as part of their freedom of expression and right to claim an identity. The en banc oral arguments in this case will be held on October 2, 2015

Read 2818 times Last modified on Monday, 24 August 2015 15:29
Jessica Neer McDonald

Jessica earned her bachelor’s degree from the University of Florida, magna cum laude, and graduated from the University of Miami School of Law, magna cum laude.  While in law school, she was a Miami Scholar active in various leadership roles, including Managing Editor of the Inter-American Law Review, Board Member of the Charles C. Papy Moot Court Board, Board Member of the Public Interest Leadership Board, Secretary of the Society of Bar and Gavel, and Student Board Member of the Student Affairs Committee of the University of Miami Board of Trustees.  Jessica has served the Florida legal community through legislative employment in the Florida Senate and House of Representatives, as well as through internships with Judge Adalberto Jordan, Magistrate Judge Edwin Torres, and the United States Attorney’s Office for the Southern District of Florida.