The recent decision by the Trademark Trial and Appeal Board canceling the Washington Redskins’ trademark registrations on the grounds that they “disparage” American Indians, is more than a victory for political correctness. It is an omen that trademark law is on a collision course with the First Amendment.
Most of the Board’s cases involve charges that the mark under consideration is confusingly similar to another party’s. But the Lanham Act also provides for cancellation of marks which are “immoral,” “scandalous,” or which “disparage persons” or “bring them into contempt or disrepute.” This provision is rarely used. Indeed, for 50 years after passage of the act, not a single decision involving cancellation of a registration on the grounds that it “disparage[s] persons” was reported.
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