Foul play over US trademark


The Washington Redskins name has attracted fierce debate over the years. Edward Lee and Douglas Masters, attorneys at Loeb & Loeb, discuss the latest attempt to revoke the mark -

US trademark law prohibits the registration of a trademark that “[c]onsists of or comprises immoral, deceptive, or scandalous matter which may disparage… persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute…”

Companies wanting to assure themselves that a brand will not be denied protection under this provision, or worse yet, be taken away years later, struggle with the idiosyncratic application of this law. How do you evaluate whether a mark is too offensive, provocative, or in such bad taste that it cannot be federally protected? To whom does the mark have to be offensive? Is it permissible to offend only a certain group of people? Or some portion of a group of people? And how does a trademark owner make sure it can defend its brand in the future given that such a challenge has no statute of limitations?

Originally published in the May 2013 edition of Intellectual Property magazine.

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