As has been widely reported, the Trademark Trial and Appeal Board has ruled that “redskins” is deeply offensive slur and can not be federally registered as a trademark under 15 U.S.C. § 1052(a), which prohibits registration of marks that contain “immoral, deceptive, or scandalous matter or matter 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.”  (We last looked at that statute when the TTAB denied registration to “cock sucker” for rooster-shaped lollipops.)

I am pleased to see this ruling and hope it will add further impetus to the drive to rename the Washington pro football franchise. But in my self-appointed role as debunker of popular press reporting on IP law issues, the past 24 hours have been hell, even putting aside the CNBC personality who asked how the team could go on without “patent” protection. So a few facts are in order.




mickey-mantle-whitey-ford-signed-autographed-1957-yankees-yearbook-psadna-8-t2333117-170It was some ten years ago, while the Boston Red Sox were still mired in the 86-year championship drought brought on by the Curse of the Bambino, that their president Larry Lucchino hung the moniker “Evil Empire” on the New York Yankees.  The Yankees, as Lucchino should have anticipated, took it as a compliment and good naturedly embraced the honorific, even playing the Darth Vadar musical motif at home games.  The Yanks have not, however, gone so far as to use the term “Evil Empire” on team merchandise or otherwise as a trademark, as they have with their more familiar and flattering nickname “Bronx Bombers.” So what happened when an apparel maker unaffiliated with the team sought to register “BASEBALLS EVIL EMPIRE” as a trademark?  Duuh Duuh da da da Duuh Duuh da da da Duuh Duuh dun-dun-dun-duuuuh . . .



luck_9As Professors Aufderheide and Jaszi write in their book Reclaiming Fair Use (Chicago 2011), “fair use  becomes real only when people use it; like a muscle, it can shrink with disuse.”  Kudos then to fulltime high school teacher Rob Rang and, for which Rang moonlights as an NFL Draft analyst.  It must have been intimidating to receive cease and desist letters and phone calls from the lawyers for National Football Scouting, Inc., complaining that Rang’s disclosure of Player Grades devised as part of scouting reports sold to 21 NFL teams for $75,000 per year was a copyright infringement.  Rang and the website stood their ground, and last week a federal district court in Tacoma, Washington upheld their fair use defense.  The ruling in Rang’s favor, unlike Andrew Luck, was no sure thing.



The over-arching economic problem that dogs all of American patent and copyright law is one of demarcation—when is the marginal utility of  an incentive provided to one innovator “to promote progress in science and the useful arts” outweighed by the burden it places on the creativity and economic freedom of everyone else and is therefore counterproductive?  In The Knockoff Economy: How Imitation Sparks Innovation (Oxford Univ. Press), Law Professors Kal Raustiala of UCLA and Christopher Sprigman of the University of Virginia attack this problem from a novel angle, examining  fields of creative endeavor that seemingly flourish in the absence of patent or copyright protection and in the face of rampant and easy copying—fields such as couture fashion, haute cuisine, stand-up comedy, high finance, and professional (and big-time college) football.  Their approach, more anecdotal and even dishy than empirically rigorous, results in a study that is timely, enjoyable, original, and informative, though it falls short of forming a rock-solid foundation for the broad generalizations about IP law and its application to other fields that the authors seek to draw.



With the opening ceremonies of the Games of the XXX Olympiad just a few days away, the media are awash in stories about the U.S. Olympic Committee’s trademark bullying.  (Olympic Gyro, a mainstay of Philadelphia’s Reading Terminal Market, it is reported, has been pressured into changing its name to Olympia Gyro.)  The Committee’s aggressive tactics are rationalized as essential to protecting a financial model that is highly dependent on the sale of official sponsorships, giving certain commercial enterprises that pay dearly for it the right to use the Olympic name and symbols.

Trademark enforcement by sellers of official sponsorships is especially obnoxious when it spills over into an attempt to monopolize the language itself, a phenomenon I first noticed back in 1999, when Atlanta Falcons coach Dan Reeves, in an ad for I-forget-what- pharmaceutical, remarked that it had allowed him to return just weeks after coronary bypass surgery to coach “the biggest game of the year.”  Could the NFL really stop him from saying “Super Bowl XXXII”?  (And what is it with trademark bullies and their roman numerals?)  Must your local appliance store resort to euphemisms like “get your big screen TV delivered in time for the big game”? A quick refresher on the oft-neglected trademark doctrine of nominative fair use after the jump.


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  • Gary A. Rosen

    Gary A. Rosen, a lawyer, has litigated copyright, patent, and other intellectual property cases for more than 25 years, and is a Lecturer in Legal Studies at the University of Pennsylvania's Wharton School. Before entering private practice, he served as a law clerk to federal appellate judge and award-winning legal historian A. Leon Higginbotham, Jr. He holds a degree in physics from Haverford College and graduated magna cum laude from the University of Michigan Law School. He and his wife Lisa, a physician, and their two children live outside Philadelphia.
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