Category: Trademarks

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How Important is the Description of Goods or Services in a Trademark Application?

LegalForce-v-LegalZoom

Raj Abhyanker is the owner of the lawfirm LegalForce RAPC Worldwide and of Tradmarkia.com. Raj and his lawfirm sued LegalZoom, the USPTO, and the State Bars of California, Arizona, and Texas based on what Raj alleged is LegalZoom’s unauthorized practice of law in connection with trademark application filing.

Alleged Unauthorized Practice of Law

Raj alleged that LegalZoom engaged in the unauthorized practice of law in connection with LegalZoom’s trademark application filing service. Raj and his law firm used LegalZoom to apply for two trademarks in connection with two of the Plaintiff’s businesses.

According to the complaint, LegalZoom represents on its website that it does not practice law. However, the complaint alleges that LegalZoom collects a service fee for its “peace of mind” review service. The complaint alleges that during the “class section and description modification step” LegalZoom routes customers to allegedly non-lawyer “Trademark Document Specialists.”

In the process of using LegalZoom to apply for two trademarks, the plaintiffs allege that LegalZoom provided legal advice by selecting a classification and modifying the goods and services description for a trademark application from the template thereby applying specific law to facts.

Why the Description (Identification) of Goods/Services is Important

Crafting a description of goods/services is an important step that can impact the scope of rights that exist under a trademark registration. This is because trademark rights are normally measured in relation to the goods/services on which the mark is used.

Drafting a description of goods/services is where many pro se applicants run into trouble. Sometimes drafting the description of goods can be relatively straight forward. But many times it is not.

Previously, I explained why the description of goods/service is important:

The description is important because it is what the USPTO will use to compare to other trademark registrations or trademark applications to determine whether there is a conflict. The comparisons occur in two types of situations.

The first comparison situation occurs when the USPTO reviews your application. There, the USPTO compares your mark to previously filed applications and registrations that are live. If the description is too broad, then the USPTO might find a conflict between your mark and a previous application or registration, which would not have occurred if your identification was not over broad…

The second comparison situation occurs when the USPTO is examining later filed trademark applications. If your description is too narrow then the USTPO might allow a later filed trademark application to be registered. But if your application had a proper description the USPTO would have blocked a later confusingly similar mark from being registered. Therefore, a description that is too narrow will not properly operate to block later filed trademark applications that would otherwise be in conflict. As a result, a narrow identification of goods and services will necessarily narrow the blocking effect of your application and narrow your trademark rights.

In addition, the description will be used by a court to determine the scope of rights that you have under trademark registration in a trademark lawsuit.

For a description to be crafted and used without any attorney involvement is problematic given the importance of the description.

Not surprisingly, according to the Complaint, Raj claims ethics attorneys advised him that he cannot have descriptions of goods/services prepared and used in trademark applications without attorney review, otherwise he would risk violating the unauthorized practice of law rules.

At the complaint stage, we don’t know LegalZoom’s process exactly. Nevertheless, preparing a description (identification) of goods/services for a trademark application is an important step that impacts the scope of the applicant’s trademark rights.

Citation: LegalForce RAPC Worldwide v. LegalZoom.com, Inc., no. 5:17-cv-7194 (N.D.Cal. 2017) [Complaint, Exhibits to Complaint].

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Why You Should Own and Control Your Domain Name

“Do you want to build your online brand on the sand of someone else’s domain registration or on a bedrock of a domain registered in your name?”

FLNBIf you buy a piece of land, a house, or a building, would you allow the title to that property to name your real estate agent or your maintenance contractor? No, you would not. When you are spending hundreds of thousands of dollars or more on something you make sure that you actually own it in your name.

The same should be true when you buy a domain name for your website, regardless of the price. You should own and register it in your name, and not your technology provider’s name or anyone else’s name. When this is not the case, it can lead to a lot of problems and possibly tens of thousands of dollars in attorney fees to get your domain name back, as the following case appears to demonstrate.

We Merely Permitted You to Use Your Domain Name for 20 Years as a “Courtesy” 

The First Liberty National Bank of Liberty Texas sued its technology service provider Memran Inc. (d/b/a Computer Solutions) and the service provider’s founder alleging that after First Liberty informed Memran that First Liberty was going to use another company for its technology needs and stop using Memran, Memran allegedly: “claimed for the first time to own the [First Liberty’s] FLNB.com domain name.” Memran also allegedly “claimed that it had merely ‘permitted’ First Liberty to use the domain name for nearly 20 years as a mere ‘courtesy’ to First Liberty, because it ‘[was] a Computer Solutions client.’ ”

We Own It and Will Shut It Down, But Want to Negotiate Getting it Back?

Then Memran allegedly “wrote that it ‘will no longer permit First Liberty’ to use the FLNB.com domain name after the parties’ business relationship concludes on February 1, 2018.” Memran then allegedly “immediately proceeded to say that it was ‘open to negotiations regarding transferring [the] flnb.com domain name” to First Liberty.'”

While this allegation does not directly say “buy/sell” its arguably implied that some compensation was sought. What compensation is sought? Maybe: I own it, but I’ll sell it to you for a fee (probably a large fee). Or maybe: we will transfer it to you if you continue to use us for your technology needs.

The complaint alleges that “At some point in late 1996 or early 1997, First Liberty instructed Computer Solutions, in its role as the bank’s information-technology provider, to register the internet domain name FLNB.com for First Liberty’s future use.” The complaint further alleges that:

“In its role as First Liberty’s information-technology provider, Computer Solutions listed its principal Meche as the registrant of the FLNB.com domain name. First Liberty allowed this because it trusted Computer Solutions and Meche to act in the bank’s best interest as the bank’s trusted information technology provider.”

Register It In Your Name

This was the first mistake. Its my opinion that you should not allow your technology provider to register your domain name in the technology provider’s name. True, maybe many/most times it will not be an issue because you have a good level of trust with the technology provider. However, you never know when things are going to go south.

If needed, have your technology provider come to your office and walk you through the steps of registering the domain name in your name. Make sure you are listed as the owner. Make sure you or a very trusted employee of your company is named as the contact. Further, make sure that if you are not the contact, that the contact email address is one where if email is sent to it, you are copied so you can be aware if someone tries to change ownership of the domain covertly.

Domain names probably have a higher chance of being registered in someone else’s name because many times, if the name is available, they can be obtain for a small fee on the order of tens of dollars. Transactions that involve low dollar amounts tend not to undergo a lot scrutiny. I don’t know the original cost of registering FLNB.com, but its likely that it was for a nominal amount. If First Liberty had spent 100K+ on the domain name FLNB.com, I suspect it would have been registered in First Liberty’s own name, in the same way real property (land and buildings) would be, because such transactions get more scrutiny and more process.

Yet, even if registering a domain name costs tens of dollars, you need to have it registered in your name. Having it registered in someone else’s name leaves you exposed to potential disputes about ownership later. Do you want to build your online brand on the sand of someone else’s domain registration or on a bedrock of a domain registered in your name?

Litigating a Cybersquatting Claim Is Expensive and Stressful; Making Sure the Domain Is in Your Name Is Cheap

From the Complaint it appears that First Liberty has a good chance of recovering the domain based on a claim of cybersquatting. But it had to file a complaint and an emergency motion for a temporary restraining order against the defendants over the holidays. It’s probably going to need a hearing on that motion plus more legal proceedings if the defendants fight back. First Liberty could be in for $10,000 in attorneys fees or more to get the domain back. Not cheap and very stressful over the holidays. What is cheap is making sure the domain is registered in your own name before there’s a problem, preferably at the beginning.

If its not currently registered in your name, have it transferred to you before there’s a problem.

While the domain name should be registered in your name, that does not mean that you can’t have a technology service provider do the work of developing and maintaining a website at the domain. You can have contractors build and maintenance a building without the contractor owning and controlling the land and building. We are talking about ownership and control here, not access.

The alleged facts naturally favor First Liberty at the complaint stage. Memran has not answered or responded yet to these allegations. So we don’t have Memran’s side of the story. Nevertheless, the allegations demonstrate the need of owning a domain name in your own name.

Case citation: The First Liberty National Bank, N.A., v. Memran, Inc., No. 1:17-cv-534 (E.D. Tx. Dec. 27, 2017)

The image at the beginning of this post is of First Liberty’s FLNB trademark in stylized form, which it has allegedly used since 1972. Trademark rights are the foundation of a cybersquatting claim.

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Incontestable Status of Mark Found Generic Does Not Prevent Exceptional Case Attorney Fees

REACTIVEGeoDynamics sued DynaEnergetics for trademark  infringement of GeoDynamics’ REACTIVE trademark. GeoDynamics owned U.S. Trademark Registration No. 3,496,381 for the REACTIVE mark. After a bench trial the court found that REACTIVE was generic for the goods of fracturing charges for use in oil and gas wells and ordered the registration cancelled.

The defendant moved for fees and the court agreed that GeoDynamic’s trademark case was exceptional based on the weakness of its case. GeoDynamic asserted that the case was not exceptional because, among other reasons, the REACTIVE mark had achieved incontestability status at the USPTO. The court rejected that view. The incontestability status was not a bar to finding the case was exceptional.

Incontestability is somewhat misleading because “incontestability” is only achieved with respect to some grounds on which the registration can be attacked. 15 U.S.C. §1065. But a registration can always be attacked based on the allegation that the mark is generic. 15 U.S.C. §1065(4); 15 U.S.C. §1064(3).

The court found that GeoDynamics trademark case was exceptional because (1) its witnesses admitted the phrases “reactive liner charge” and “reactive charge” was generic for goods in question (2) GeoDynamics did not provide a meaningful analysis of the likelihood of confusion factors, and (3) Geo Dynamics did not provide any evidence that the defendant used the mark since the lawsuit was filed in 2015. On the last point the court said, “Without such evidence of continued use [after the suit was filed], it was unreasonable for GeoDynamics to pursue its trademark claim solely for an injunction with such an objectively weak infringement position.”

Citation: GeoDynamics Inc., v. DynaEnergetics US, Inc., No. 2:15-CV-01546 (E.D. TX Dec. 21, 2017).

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Multi-Color Design Trademarks and Trade Dress

SATA_Italco_PaintSATA GmbH sued Discount Auto Body and Paint Supply LLC for infringing its product design trademarks in the alleged sale of paint spray guns. SATA GmbH & Co. KG v. Discount Auto Body and Paint Supply LLC, No. 2-17-cv-03101 (D.N.V. 2017).

This case demonstrates that it is possible not only to obtain trademark protection in a product design comprising a single color applied to an area of the product, but also on any color applied to an area of a product. In other words, the use of any color on an area of a product can itself act as a trademark, indicating a source of goods and/or services.

One of the trademark SATA asserted was U.S. Trademark Registration No. 2,770,801 for a design mark of “a green band of color extended around the circumference of a paint spray gun air cap ring, the green band being narrower than the air cap ring…The drawing is lined for the color green.” The drawing of the mark is:

US_TM_Reg_2770801

SATA also asserted U.S. Trademark Registration No. 2,793,583 for to a design mark of “a band of [any] color extended around the circumference of a paint spray gun air cap ring, the color band being narrower than the air cap ring and of a color that contrasts with the air cap ring.” The drawing of the mark is:

US_TM_Reg_2793583

Therefore, the first trademark registration is directed to a green ring on a paint spray gun. But the second trademark is directed to a ring of any color, as long as that color contrasts with the air cap ring.

Below is a photo of the green ring deployed on SATA’s actual product.

GreenCapRing

The principle of allowing the registration of multi-color design marks appears to be first addressed in a 1972 case where Data Packaging Corp. applied to register a design applied to a computer tape reels. In re Data Packaging Corp., 453 F.2d 1300, 1302 (CCPA 1972). The claimed design was to “a narrow annular band mounted on the front reel flange, adjacent to and concentric with the hub of the reel, in a color which contrasts with the reel flange.” The USPTO refused registration asserting that the law prohibited the registration of a mark which provided for the use of any color as its distinguishing feature.

The court of appeals rejected that view and reversed the USPTO. The court concluded that “there is no reason why an applicant should not be able to obtain a single registration of a design mark covering all the different colors in which it may appear, that is to say, not limited to a particular color.”

The SATA case is only at the complaint stage so we don’t have any rulings with respect to SATA’s marks. Nevertheless, the plead registrations demonstrate a multi-color design trademark registration.

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How to Find Cases Interpreting the Illinois Trademark Registration and Protection Act

The Illinois Trademark Registration and Protection Act (“Illinois Trademark Act”) provides a system for registering and enforcing trademarks in Illinois.  765 ILCS 1036/1 et seq. However, in many instances there may not be any relevant cases interpreting the provisions of the Illinois Trademark Act. Section 90 of the Act may solve this problem by providing that cases interpreting the federal Lanham Act are persuasive authority for interpreting similar provisions of the Illinois Trademark Act. 765 ILCS 1036/90.

In particular, section 90 states:

…The intent of this Act is to provide a system of State trademark registration and protection substantially consistent with the federal system of trademark registration and protection under the Trademark Act of 1946, as amended. To that end, the construction given the federal Act shall be examined as persuasive authority for interpreting and construing this Act.

Since there are many more cases interpreting the federal Lanham Act, section 90 provides those cases will likely be useful in understanding the meaning of parallel provisions of the Illinois Trademark Act.

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Reversing Order of Words of a Mark and Consistent Use of a Mark

CAGE_PHConventus Orthopaedics applied to register two marks CAGE PH and PH CAGE for surgical implants. The Examining attorney refused registration on the basis that each mark was descriptive. The Examining attorney argued that PH was descriptive for proximal humerus (bone). The TTAB reversed finding that there was not enough evidence to show that PH was descriptive.

What’s interesting about this case is that the applicant applied to register CAGE PH (No. 86534128) and its reversed/transposed order PH CAGE (No. 86534174). This is unusual. Normally you want to use a mark consistently in order to properly build trademark rights. Inconsistent use of a mark can negatively impact your trademark rights.

Further, the TTAB has said that reversing or transposing the elements/words of a mark does not avoid a conflict when the overall commercial impression of the marks are not changed. For example see In re Wine Soc’y of Am. Inc., 12 USPQ2d 1139 (TTAB 1989) (THE WINE SOCIETY OF AMERICA and AMERICAN WINE SOCIETY); In re Nationwide Indus., Inc., 6 USPQ2d 1882 (TTAB 1988) (RUST BUSTER and BUST RUST); and In re Gen. Tire & Rubber Co., 213 USPQ 870 (TTAB 1982) (SPRINT STEEL RADIAL and RADIAL SPRINT).

Maybe Conventus was worried that its mark(s) were not that strong. But even if there might be some legal reason to use a mark and its transposed variation on the same goods, there may be marketing reasons not to.

On Conventus website the general product page lists CAGE PH but then when you click to drill down to the specific detail page for this product, that page lists the product as PH CAGE.

Would it be odd to encounter Coca-Cola sometimes and Cola-Coca others? Or would you order a Big Mac sometimes and order a Mac Big others for the same product?

Normally, you pick a strong trademark, register it, and allow trademark law to block similar marks used on similar goods/services, without having to use those variation of similar marks yourself on the same goods/services.

Citation: In re Conventus Orthopaedics, Inc., Nos. 86534128, 86534174 (TTAB 2017).

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Name with Dictionary Definition Involving Illegal Activity: How Will it Play with the Jury

ContrabandYesterday, I wrote about Contraband Sports LLC’s lawsuit for declaratory judgement that its four finger weight lifting glove does not infringe Fit Four LLC’s design patent D652,607. If this case goes to trial, could there be any difficulty arising out of Contraband’s name?

On one hand, a party’s name should have no bearing, merits-wise, on whether or not it infringes a patent. On the other hand, does Contraband’s name have a negative connotation that could impact the jury?

The Oxford English dictionary provides one definition of “contraband” as “goods that have been imported or exported illegally.” Merriam-Webster’s dictionary provides an other definition of the term as “illegal or prohibited traffic in goods.” Dictionary.com provides a definition of the term as “anything prohibited by law from being imported or exported.”

Say the defendant chooses to refer to the plaintiff in front of the jury as “Contraband” e.g. “Contraband asserts that…” “Contraband’s product has…” “Contraband’s president says…” “Contraband…” “Contraband….” “Contraband….” and so-on and so-on. Does that repeated use of “contraband” have an impact when Contraband is trying to show that its product is non-infringing; trying to show that its law abiding in the patent sense? It seems like a possibility. Sure, maybe it won’t have a decisive impact in most cases, but what about a close case?

It is probable that Contraband is using its mark in an arbitrary manner and does not illegally import its goods, if it imports at all. But, the focus here is on what perception a mark might engender to a jury.

Maybe this case will never make it to trial and it will never be an issue. And maybe the name is well received with customers in the same way less edgy words like “rebel” are received so that any potential downside in (rare) legal proceedings are offset by market benefits of the name. Nevertheless, its worth considering whether using a word as business name having a definition involving illegal activity could be a detriment when trying to show that you are, in fact, within the law.

Peter Thiel believes that company names are predictive of future success. And he criticizes the names of companies like Napster. I bet he wouldn’t like the name Contraband either.

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Stats Require Context to Support Assertion that Mark is Famous: $33M Sales, $1.8M Marketing Not Enough

KUHL_KUL_Marks

Daniel Shuff applied to register the mark KU:L for bicycles. Alfwear Inc opposed the application based on its registered marks KUHL, KÜHL, and KUUL for lip balm, fabrics clothing, including rugged outdoor clothing.

Alfwear attempted to show that its mark was famous. But showing that a mark is famous is hard. A famous mark must have extensive public recognition and renown. Aflwear presented evidence that:

  1. it had used the KÜHL mark since 1993,
  2. it used the mark on 200 styles of outdoor clothing per year,
  3. it had $33 million in retail sales in 2012,
  4. it sold over 1 million pairs of pants in 2015,
  5. it spent about 1.8 million a year between 2012 and 2016 marketing and advertising,
  6. it sold its products in over 1000 retailers through out the US, including in REI, Scheels, Gander Mountain, and
    Eastern Mountain Sports,
  7. its website received 1.3 million visitors in 2016,
  8. it has a 200,000 customer emails that it sends email blasts to, and,
  9. it has a Facebook page with 31,129 “likes” and 30,558 followers, a Instagram account with  8,145 followers, and a YouTube channel with 342,838 views.

This was not enough to show that its KÃœHL mark was famous.

The Board noted Alfwear did not provide a context for some of the numbers above. For example, Alfwear did not compare its numbers to the numbers of the overall industry or other competitor brands. The Federal Circuit previously said:

“…raw numbers alone in today’s world may be misleading. For example, a 30-second spot commercial shown during a Super Bowl football game may cost a vast sum, but the expenditure may have little if any impact on how the public reacts to the commercial message. At the other extreme, handbills passed at little cost to millions of consumers (for example, to New Yorkers exiting subway stations) may amount to the kind of advertising that is probative of consumer recognition of a mark. Consequently, some context in which to place raw statistics is reasonable.” Bose Corp. v. QSC Audio Prods., 293 F.3d 1367, 1375 (Fed. Cir. 2002).

It also said, “A tiny percentage of the market share for the product or a small share of advertising revenues for the product market could undermine the weight given to the figures for assessment of fame.” 

While Alfwear did not establish that its mark was famous, the evidence did persuade the Board that Alfwear’s KÃœHL mark was strong.

Alfwear ultimately prevailed as the Board found that there was a likelihood of confusion between Alfwear’s marks and Shuff’s mark. The Board said:

Because the marks are similar, and the goods are related and move in the same channels of trade, and Opposer’s “rugged outdoor clothing” may be purchased by consumers exercising a low degree of purchasing care, we find that Applicant’s mark KU:L (stylized) for “bicycles” is likely to cause confusion with Opposer’s mark KÃœHL (stylized) for “rugged outdoor clothing, namely, jackets, shirts, pants, shorts, t-shirts,
and hats.”

Citation: Alfwear Inc. v. Shuff, Opp. No. 91224467 (TTAB 2017).

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Spaces and Plurals Unlikely to Distinguish Trademarks

NEXTHOMESMainstream Property Group, LLC applied to register the mark NEXT HOMES  for providing assisted living facilities as well as for providing long-term care facilities and short term rehab facilities for seniors. NextHome, Inc. opposed the application based on its NEXTHOME mark, which was registered for real estate brokerage services.

The Board found that the only differences between the marks were (1) the space between “Next” and “Homes” and (2) the HOMES in the applicant’s mark is plural while the opposer’s mark has HOME singular. The Board concluded that “these minute changes do not distinguish the marks.”

The Board went on to find that there was a likelihood of confusion between the marks because the opposer provided its real estate brokerage services to seniors.

Minor differences, such as word spacing or plurals v. singular word forms, are unlikely to distinguish otherwise similar marks.

Citation: NextHome, Inc. v. Mainstream Property Group, LLC, No. 91231109 (TTAB 2017)

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Bar on Registrating Disparaging Trademarks Violates the First Amendment

TheSlantsSimon Tam a member of the rock group “The Slants.” Tam applied to register the mark The Slants. But the USPTO refused registration under section 2(a) of the Lanham Act asserting that the mark was disparaging. In June of 2017, the Supreme Court found the section 2(a) prohibition on disparaging marks violated the First Amendment in Matal v. Tam, No. 15-1293 (2017). It is an important ruling in the Federal Circuit’s decision striking down the bar on registration of immoral and scandalous marks, so I’m going back to review it now.

Tam’s Aim to Reclaim Ethnic Slur

Tam chose the name “The Slants” to reclaim and take ownership of stereotypes about people of Asian ethnicity. The band draws inspiration for its lyrics from childhood slurs and mocking nursery rhymes. It has album names such as “the Yellow Album” and “Slated Eyes, Slanted Hearts.”

Disparagement Bar

A portion of section 2(a) the Lanham Act prohibits the registration of a trademark “which may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” The USPTO used a two part test to decide whether a trademark is disparaging. First it considers the likely meaning of the mark or the portion of the mark at issue. If that meaning is found to refer to identifiable persons, institutions, beliefs or national symbols, in the second step the USPTO asks whether that meaning may be disparaging to a substantial composite of the referenced group.

The justices were divided over the proper analysis of the constitutional issue but agreed on the result. Justice Alito provided an opinion for four justices and Justice Kennedy provided an opinion for four other Justices. Both Justices Alito and Kennedy agreed that the bar on disparaging marks constituted viewpoint based discrimination. If the message is a disparaging one, it is prohibited under section 2(a). That is the government is discriminating on the basis of the message, e.g. the view point.

Trademarks Are Not Government Speech

The justices agreed that registration of a mark does not transform the mark into government speech. On this point the court said that “If the federal registration of a trademark makes the mark government speech, the Federal Government is babbling prodigiously and incoherently.” It went on to cite examples of registration of marks that provide contradictory views. Simply registering marks and placing them in a database does not constitute government speech.

Kennedy: View-Point Discrimination Subject to Heightened Scrutiny

Justice Kennedy would have ended the inquiry there. His view is that once you have view-point discrimination and you conclude that the speech at issue is not government speech, you run into heightened scrutiny that the section 2(a) disparagement bar can’t survive. He said “It is telling that the Court’s precedents have recognized just one narrow situation in which viewpoint discrimination is permissible: where the government itself is speaking or recruiting others to communicate a message on its behalf.”

Alito: Disparagement Bar Cannot Survive Intermediate Scrutiny 

Justice Alito asserts that the court need not decide whether trademark registration comprises commercial speech, subject to relaxed intermediate scrutiny, or expressive speech subject to strict scrutiny because the disparagement bar cannot survive even intermediate scrutiny.

Under intermediate scrutiny “the regulatory technique may extend only as far as the interest it serves.” Alito found it fails this requirement. The government asserted the following interest that are purported to be served by the disparagement bar: (1) preventing underrepresented groups from being bombarded with demeaning messages in commercial advertising, and (2) protecting the orderly flow of commerce.

Alito dismissed the first interest because the First Amendment protects the freedom to express “the thought[s] that we hate.” And on the second interest, Alito finds that the disparagement bar is not narrowly drawn to drive out trademarks that support invidious discrimination. It reaches the disparagement of any person, group, or institution and applies to trademarks like “Down with racists.” He says its not an “anti-discrimination clause; it is a happy-talk clause.” Therefore it goes further than necessary to serve the interest asserted.

Impact of Decision

As I cited yesterday regarding the invalidation of the bar on immoral and scandalous marks, “The marketplace would ideally deal with the most offensive marks, as consumers would presumably refuse to purchase goods sold under marks that offend them.” Trademarks Laid Bare: Marks That May Be Scandalous or Immoral, 101 Trademark Rep. 1476 (2011). The same is likely true with disparaging marks, apart from instances like THE SLANT were the owner is trying to reclaim and change the meaning of a mark.

Probably the most high profile impact is that the Washington Redskins mark will remain registered. That mark was previously invalidated by the USPTO on the basis of the disparagement bar and that decision is the subject of a pending appeal to the Fourth Circuit. In June, the parties in the Redskins appeal filed letters to the Fourth Circuit stating that the Tam decision controls and that the USPTO decision canceling the Redskins mark should be reversed.

So it will take longer before the Redskins change their name, which is likely to happen eventually on account of public pressure, rather then legal rulings. Still it is doubtful that any serious sporting team would adopt the Redskins name today, if today was day-one of the franchise.

The law no longer bars registration of disparaging trademarks. But, we are unlikely to see a flood of businesses adopting disparaging marks in the marketplace.