There has been much in the general and legal news about the challenge to the NFL Washington Redskins trademark registrations. Recently, a federal district court judge affirmed the decision of the U.S. Patent and Trademark Office (USPTO) Trademark Trial and Appeal Board (TTAB) to cancel the Washington Redskins' trademarks as disparaging to Native Americans. In the much publicized case of Blackhorse v. Pro-Football, 111 USPQ2d 1080 (TTAB 2014), the Washington team and the National Football League faced a public relations problem. In this most recent TTAB decision, one in the series of actions against the Redskins, a group composed of representatives from five Native American tribes succeeded in convincing the TTAB that Native Americans find the Washington NFL team's “Redskins” marks to be disparaging of them. While the NFL connection and the fame of the football team have drawn much attention to this case, the issue is larger than one case or one series of trademarks. The larger issue is whether there will be a new policy of trademark policing or a new recognition that there may have been mistakes made in some registrations because the majority of the public did not find the mark offensive.

Individuals on one side of this issue find it unsettling that an offended group is permitted to challenge existing, registered marks that have been in use for more than four decades as personally offensive and successfully strip away the trademark registration. Individuals on the other side of this issue find it unsettling that an organization was ever permitted to register the marks or that they were ever considered for use. What this conflict demonstrates is the evolving social value that is now in play when the USPTO trademark attorney reviews a new application or a challenge to an existing registration, or the TTAB reviews either decision. In other words, a trademark will not get a pass: because it is already registered; because it may apply to an individual who is a member of the disparaged class; or because the majority of the population does not find it offensive.

The Lanham Act, 15 U.S.C. Section 1051 et seq., and Section 2(a) of the act, are not biased in either direction. A mark will be found disparaging under Section 2(a) if its likely meaning is found to be disparaging to a substantial composite of a referenced group of identifiable people, institutions, beliefs or national symbols. Standing to bring a trademark cancelation proceeding requires minimal evidence that the individual or group filing the claim was reasonably and actually offended by the mark. As such, it appears that the Lanham Act was designed to protect groups, such as the petitioners who sought cancellation of the Redskins marks, from experiencing the alleged personal or group disparagement. The other side of this particular cancellation challenge believes that the Lanham Act should not allow a late challenge to organizational trademarks that were adopted and used in good faith, had been granted registrations, and acquired a secondary, nondisparaging meaning over decades of use. It was a point of contention in the Blackhorse case as to whether the marks could acquire a nondisparaging meaning. Nevertheless, the TTAB and the district court found the marks to be disparaging to a substantial composite of Native Americans and canceled the marks.