10-2a Trademarks, Servicemarks, and Trade Dress Summary
Company’s ownerships on various elements that identifies its products are protected from unfair competition by registration under the Lanham Act. Trademarks servicemarks and trade dress are the main three product-related aspects protected by the law. Such registration prevents unfair competition and protects consumers from receiving misleading information about the product. It is impossible to register a trademark, which is similar to other registered by the U.S. Patent and Trademark Office.
There are four main categories of marks, including “fanciful or arbitrary,” “suggestive,” “descriptive,” and “generic”. Fanciful marks are invented words with no existing meaning, hence they are less complicated to register and harder to contest. The suggestive mark represents a connection to the product or service without particularly naming or describing them. Marks, which are descriptive of the goods or services, need to be distinctive and have a “secondary meaning” to be registered. Generic words are not allowed to be used as trademarks as it a universal right to use common names for products or services. In some cases even fanciful marks may become generic if they are not registered in time.
Pro-Football Inc. v. Blackhorse Case Brief
Pro-Football Inc. v. Amanda Blackhorse et al
United States, Court of Appeals, 1:14-cv-01043-GBL-IDD.
Facts
The National Football League (NFL) used ‘Redskins’ as their mark chosen by the team’s owner George Preston Marshall. Five Native Americas, Amanda Blackhorse, Marcus Briggs-Cloud, Phillip Gover, Jillian Pappan, and Courtney Tsotigh pressed charges against Pro-Football, Inc for using an offensive trademark. Blackhorse et al demanded cancellation of the trademark registration as it included term ‘Redskins’. In June 2014, the trademark registration was cancelled by the Trademark Trial and Appeal Board as it violated the Lanham Act. The case was also brought in federal court as the defendants claimed that the Redskin Mark violated Lanham Act. The trademark was claimed to disparage Native Americans at the time of registration and latches shall not bar the claim.
Issue
Does the disparagement clause of the Lahnam Act violate the First and Fifth Amendments? Does the prolonged time gap between registration and cancelation of the trademark violate due process?
Holding
The court denied PFI’s summary judgment motions.
Reasoning
The court determined that the Lanham Act does not violate the First Amendment. It was also stated that the federal trademark involves government speech instead of commercial and the government speech is exempt from the First Amendment. The court also determined that the Lanham Act gives sufficient criteria for actions qualified as disparaging. The court considered the statements made by individuals who belong to the disparaged group. According to statements of Native Americans the Redskins Marks contained disparaging elements.
Opinion
Any issues related to freedom of speech may be significantly controversial. As the Lanham Act prohibits registration of marks that consist of immoral, deceptive, or scandalous matter, it may be interpreted subjectively. Such aspects as morality are not objectively determined, therefore the court has the discretion to find if the trademark is disparaging. There are some controversial opinions on the exemption of governmental speech from the First Amendment (Novotny). However, the decision in the particular case may be considered to be reasonable as businesses should avoid delicate or provocative subjects when creating their trademarks.
Work Cited
Novotny, Michael James. “Is Pro-Football v. Blackhorse a Nibble Off the Ear or a Knock-Out Punch to Trademark Law?” SSRN Electronic Journal, 2016, Web.