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Powers Files Amicus Briefs in Two Controversial Trademark Cases

By April 25, 2017No Comments

Powers Pyles Sutter & Verville recently assisted in filing two amicus briefs in cases involving controversial trademark issues, including a challenge to the Washington Redskins name.

Principal Larry Gondelman took the lead in filing an amicus brief in the U.S. Court of Appeals for the Fourth Circuit on behalf of a multitude of Native American organizations challenging the trademark of the name the National Football League team, the Washington Redskins.  Also on the brief was the Native American Rights Fund.

The brief was written in support of the individual plaintiffs in the case of Pro-Football, Inc. v. Amanda Blackhorse; Marcus Briggs-Cloud; Philip Gover; Jillian Pappan; Courtney Tsotigh in which the plaintiffs successfully challenged Pro-Football, Inc.’s use of the football team mascot due to the fact that its use has “resulted in real harm to Native Americans.”

The brief was written on behalf of 40 organizations and groups – known as the “amici” or friends of the court – including the National Congress of American Indians, the oldest and largest national intertribal organization.

In the brief, the amici argue the District Court correctly held that the trademarks must be cancelled because they consist of matter that may disparage a substantial composite of Native Americans and “bring Native Americans into ‘contempt or disrepute.’”

The amici also argue that leaders of the Native American community have opposed the use of the Redskins mascot for the Washington team for nearly five decades, and that the personal experiences of Native Americans demonstrate that the use of the mascot exposes Native Americans to contempt, ridicule and disrepute.

Larry Gondelman also assisted in filing an amicus brief in the U.S. Supreme Court in the case of Lee v. Tam in which Simon Tam and his band, The Slants, are challenging the U.S. Trademark Office’s decision to deny the application on the basis of the Disparagement Clause of the Lanham Act of 1946.

The band appealed the decision, and the United States Court of Appeals for the Federal Circuit reviewed the case and held that the trademark office erred in refusing the trademark application and that the Disparagement Clause violated the First Amendment.

In this brief, the amici took a balanced approach to trademark law as a general matter.   The amici argued that the band’s minor interest in being able to use a disparaging trademark with the imprimatur of the federal government is outweighed by the government’s substantial interests in ensuring the orderly flow of commerce and protecting the privacy and welfare of citizens.

The amici in this brief are the National Congress of American Indians, Cherokee Nation, Navajo Nation, Yocha Dehe Wintun Nation and the Morning Star Institute, all of which have a history of involvement with cultural, economic, educational, health, policy, and social justice issues affecting the Native American nations and tribes, and their citizenry.

To read the full brief in the Pro-Football, Inc. v. Amanda Blackhorse; Marcus Briggs-Cloud; Philip Gover; Jillian Pappan; Courtney Tsotigh case, click here. To read the full brief in the Lee v. Tam case, click here.

For more information regarding the two amicus briefs, contact Powers Pyles Sutter & Verville Principal Larry Gondelman at Larry.Gondelman@PowersLaw.com or 202-872-6723.

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