Try to Fit That Into a One-Hour Prime-Time Slot

Last week the Trademark Trial and Appeal Board of the US Patent Office heard a challenge to the granting of a trademark to the Washington Redskins Football Team for the name "Redskins."  The Lanham Trademark Act prohibits the issuance of a trademark that:

Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute;

 In 1992, Native American activist, Suzan Shown Harjo, challenged the prior issuance of the Redskins trademark on the basis of the Lanham Act language quoted above. In 1999 the TTAB ruled in favor of Harjo and the NFL appealed. In 2003, the US District Court ruled that laches barred the claims as the claimants had waited too long after reaching the age of majority to bring the claim. In 2005, the Court of Appeals upheld the laches ruling as to all but one claimant and remanded the case to the District Court for examination of that claim. The District Court ruled against the final claimant and in 2009, the Court of Appeals affirmed and the US Supreme Court denied cert.

In the meantime, in 2006, another challenge to the trademark was filed by younger Native American claimants who would not be subject to the laches defense. That is the case that was argued to the TTAB last week, 21 years after Suzan Shown Harjo filed her original challenge.

Hopefully, it will not take another 21 years for the legal system to embrace justice and common sense in upholding the challengers' claim against this patently offensive use of this symbol to objectify and denigrate a human race and culture.  It's a shame that the Board has no authority to award damages.

Update: NY Times 10/10/13: here

Suzan Shown Harjo. Source of image:  http://www.ahalenia.com/harjo/index.html 



Washington Redskins graphic. Source of image: High Court Punts Washington Redskins Trademark Case

Reporter Tweets That Ref Cheats

Yesterday's post was a Law Lessong about a public figure's burden of proving actual malice in a defamation claim. "Actual Malice" has been defined as "publication of defamatory material 'with knowledge that it was false or reckless disregard of whether it was false or not.'" (See also an earlier post on NY Times v. Sullivan). To protect themselves from claims of "reckless disregard," reporters should check sources and verify facts before publishing them.  However, today reporting often happens simultaneously with the event occurrence through use of Twitter. What happens when a reporter tweets a fact that he or she has observed or heard without determining if there is corroboration from another source for what was observed or heard? In this case, a sports reporter at an NBA game tweeted that a referee told a coach that he would make a "make-up" call to atone for a bad call that was made earlier in the game. This allegation implies that a referee would make a false call to affect the outcome of the game. (Interesting ethical conundrum: A referee is bound to call the game fairly based on the play.  If a referee makes a call that he later realizes was wrong, is it ethical or unethical to make a call against the benefitted team to "even things out?"). The referee has sued for defamation. He denies making the remark.  Ostensibly, the coach denies hearing the remark. With no corroboration, has the reporter acted with actual malice in tweeting a fact that he personally experienced but cannot prove? This kind of reporting is distinguishable from expressing an opinion about a referee's call - which would not be actionable.

The Tweet in question:


Bill Spooner: NBA Referee/Plaintiff:


John Krawczinski: AP reporter:

Citing Corporate Social Responsibility, Air CanadaThreatens to Pull NHL Endorsement

In a National Hockey League game, Boston Bruin player Zedeno Chara delivered a check on Montreal Canadien player Max Pacioretty.  The incident is shown in the video below.  Pacioretty was seriously injured.  Chara received a major penalty but no fine or suspension from the league.  Citing "Corporate Social Responsibility," Air Canada, a major sponsor of the NHL issued the following letter to the NHL:

We are contacting you to voice our concern over [the] incident involving Max Pacioretty and Zdeno Chara at the Bell Centre in Montreal. This is following several other incidents involving career-threatening and life-threatening headshots in the NHL recently. From a corporate social responsibility standpoint, it is becoming increasingly difficult to associate our brand with sports events which could lead to serious and irresponsible accidents; action must be taken by the NHL before we are encountered with a fatality. Unless the NHL takes immediate action with serious suspension to the players in question to curtail these life-threatening injuries, Air Canada will withdraw its sponsorship of hockey.



This incident is arguably distinguishable from the Todd Bertuzzi incident. The following video raises an issue regarding consent in a civil battery claim. How much physical contact do you consent to when you lace up the skates? Or, as in the clip further below, you step on the soccer field? At what point does the physical contact go beyond that to which consent may be presumed?