Cancellation of Trademark Based on Disparaging Language, Pro-Football, Inc. v. Blackhorse (amicus). 

The U.S. Patent and Trademark Office cancelled the trademark registration of the Washington, D.C., pro-football team because it found the name to be disparaging to Native Americans. The football team appealed to the U.S. District Court. We filed an amicus brief arguing that, although we agreed that the name is disparaging, it is not the federal government’s place to make that decision. We argued that the section of the trademark law prohibiting registration of trademarks that are “disparaging,” “immoral,” or “scandalous” violates the First Amendment.

On July 8, 2015, the judge ruled against the football team, finding that the statute is constitutional and that the revocation of the trademark registration was justified.  The football team has appealed. On Nov. 6, 2015, the ACLU filed an amicus brief in the appeal.

Parties are awaiting action by the court on the agreed position that the Court reverse the judgement of the district court, vacate the district court’s order directing the scheduling of the cancellation of Pro-Football’s trademark registrations, and remand the case with instructions to grant summary judgement to Pro-Football.

UPDATE 8/22/2018: We filed an amicus in U.S. District Court arguing that a provision in the trademark law (Lanham Act) was an unconstitutional restriction on speech. After the petition for certiari to the U.S. Supreme Court was denied in October 2016 and a related ruling was issued by the Court in June 2017 which found that section of the Lanham Act unconstitutional, our plaintiffs dropped the case.

Attorney(s)

ACLU of Virginia; Lee Rowland, Esha Bhandari, ACLU National; Brett Max Kaufman, NYU Law School.

Date filed

March 13, 2015

Court

U.S. District Court, Eastern District of Virginia. Alexandria Division.

Status

Closed

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