On January 9, 2015, the U.S. Department of Justice (“DOJ”) announced that it has filed a notice of intervention in continuing litigation over the Washington Redskins trademark, notifying the U.S. District Court for the Eastern District of Virginia that it will defend the authority of the U.S. Patent and Trademark Office’s U.S. Trademark Trial and Appeal Board (“TTAB”).
In Pro-Football, Inc. v. Amanda Blackhorse, et al (1:14-cv-01043, U.S. District Court, Eastern District of Virginia), the plaintiff is seeking to invalidate a June 18, 2014 TTAB decision cancelling six Washington Redskins trademark registrations on the grounds that the marks were disparaging to native Americans and, therefore, violate the Lanham Act.
On August 14, 2014, Pro-Football, Inc. filed suit to overturn that decision, alleging that the Lanham Act, 15 U.S.C. § 1052(a), violates the right of free speech as guaranteed by the First Amendment of the U.S. Constitution. Pro-Football, Inc. contends that the defendants failed to meet a key requirement under the Lanham Act — that the trademarks were considered disparaging at the time they were registered. It argues that the TTAB did not receive sufficient evidence to prove that a substantial number of Native Americans were offended by the marks at the time of registration, between 1967 and 1990.
The DOJ said that it would defend the constitutionality of the Lanham Act, which allows for the denial or cancellation of a trademark application “which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”
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