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NFL Continues Challenge of “Disparaging” Marks in the Fourth Circuit

by | Aug 19, 2015 | Trademark | 0 comments

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