trademark law

A federal judge has ordered the Washington Redskins football teams' federal trademark registrations canceled, The Washington Post's Ian Shapira reports. U.S. District Judge Gerald Bruce Lee upheld a ruling by the Trademark Trial and Appeal Board, which found that the team's name is offensive to American Indians and may disparage people. The win was at the summary judgment stage.

Lee reasoned that the U.S. Supreme Court's ruling that Texas didn't violate the First Amendment when it banned specialty license plates bearing the Confederate flag means that the government is exempt from First Amendment scrutiny. As a result, the judge ruled that the Lanham Act's ban on disparaging trademarks doesn't violate the First Amendment.

NPR's Kenya Downs mused in a recent post whether the fight over the propriety of the Washington Redskins' trademark could end up changing this body of law. After years and years of efforts by American Indian activists to have the trademark canceled on the grounds that it is racially offensive and disparaging, petitioners won the cancellation of the trademark and the U.S. Department of Justice also has decided to intervene in the lawsuit. The team's owner argues that the Lanham Act, which prohibits disparaging trademarks, is too vague and an unconstitutional impediment to free speech, but trademark attorneys told Downs that the First Amendment challenge to the Lanham Act will be a tough sell. However, lawyers said the case's outcome, whether the football team wins or not, will impact whether ethnic groups can challenge trademarks as offensive.

The ALS Association, which has raised over $100 million due to its ice bucket challenge going viral, has withdrawn its efforts to trademark the phrases "ice bucket challenge" and "ALS ice bucket challenge," the Washington Post reports. The applications with the U.S Patent and Trademark Office sought to trademark the phrases for purposes of charitable giving. One trademark attorney Erik Pelton said the effort was "shameful" because it could prevent other charities from using the phrase.

IC Magazine asks if the Maori, or the indigenous people of New Zealand, could have their traditional knowledge and cultural customs copyrighted by multinational corporations under a trade agreement, the Trans-Pacific Parntership. A draft of the TPP was released by Wikileaks.

The government of New Zealand "clearly opposes the 'informed consent or approval and involvement of the indigenous or local community holding such knowledge', before user rights (and later on copyright and trademark rights) are given to TPP members and their corresponding investors (multinational corporations)," according to IC Magazine.

The maker of a mockbuster film about hobbits didn't have any luck in arguing that they weren't infringing on the trademarked fictional creatures from JRR Tolkien's Lord of the Rings series. According to the Hollywood Reporter, Global Asylum tried to argue that it was fair use to make a film referencing hobbits because it's a "reference to a real-life human subspecies, Homo Floresiensis, discovered in 2003 in Indonesia." The Ninth Circuit affirmed a lower court ruling this week.

A younger group of American Indians are challenging the Washington Redskins trademark after prior challengers to the trademark lost on the grounds that they waited too long to bring their challenge. "The current petitioners are five Native Americans from different tribes who say they are offended by the team’s name. A decision by the trademark appeal board could come any day," The Wall Street Journal reported. The footbal team argues that what matters is how a term was perceived at the time of its registration, not whether it is disparaging in 2013, The Journal also reported.

After the tizzy caused by President Obama's suggestion that law schools should be two years, not three years, for full-time students, what will come of the president's suggestion that the Washington Redskins football team should perhaps get a less controversial moniker? Obama made that suggestion in an interview with the Associated Press, The Washington Post reports.

There has been long-running litigation by several American Indian groups or individual American Indian plaintiffs to challenge the registered trademarks that the Washington Redskins hold as disparaging and racist to American Indians. National Public Radio reported on that litigation this spring: http://www.npr.org/blogs/codeswitch/2013/05/31/187636561/What-A-Lawsuit-...

Bloomberg reports that Cadbury has lost a court fight with Nestle in the United Kingdom Court of Appeal to exclusively trademark the purple packaging of chocolate bars. Nestle "overturned an October 2012 decision that ruled the color purple was distinctive to the maker of Dairy Milk bars. The ruling allows Nestle, and any other confectioners, to sell chocolate products with the same colored wrapping," Bloomberg also reported.

The Washington Post has a fun slideshow of other businesses that have been able to trademark color hues as distinctive to their products in the marketplace: http://www.washingtonpost.com/business/economy/name-that-color-cadbury-p...