WIPR survey: Majority back USPTO over ‘disparaging’ trademark rulings
More than half of respondents to a WIPR survey have said that the US Patent and Trademark Office (USPTO) was right to reject trademark applications on the grounds that they were “disparaging”.
Last week we asked whether the USPTO’s denial of trademarks to National Football League (NFL) team the Washington Redskins and rock band The Slants breached First Amendment rights.
The Slants were denied a trademark for their name on the grounds that it could be offensive to people of Asian heritage while the Washington Redskins were stripped of six trademarks following a legal challenge which said the term Redskins was an offensive word for Native Americans.
Both parties claimed that rejecting applications for this reason breached their right to free speech.
But, responding to WIPR, 58% of respondents said the USPTO did not violate such rights.
One commenter said: “The right to free speech does not extend to a right to have a federally protected trademark.”
In June last year, the USPTO stripped the Washington Redskins of its trademarks, which each included the word ‘Redskins’, after they were challenged by a group of Native Americans.
The marks were all registered between 1967 and 1990.
The NFL team appealed against the decision in August and the case has now gone to the US District Court for the Eastern Division of Virginia.
Reaction to the case has divided some in the legal community.
The US Department of Justice backed the USPTO’s decision but the American Civil Liberties Union came down on the side of the NFL team.
In the second case involving the disparaging trademarks question, the US Court of Appeals for the Federal Circuit ruled in January this year that it would uphold the USPTO’s decision to reject The Slants’s trademark application for the band’s name.
The Slants planned to appeal against the ruling, but the Federal Circuit beat them to the punch by requesting that the case be heard en banc.
Despite both the Washington Redskins and The Slants arguing that the USPTO’s decisions are a violation of the First Amendment right, Simon Shiao Tam, the founder of the band, has said the cases are not “analogous”.
In response to WIPR’s last survey, which centred on proposed reforms to the European trademark system, three quarters of respondents said they would have a positive effect.
