Disparagement

Disparagement

[dih-spar-ij-muhnt]
Disparagement, in United States trademark law, is a statutory cause of action that permits a party to petition the Trademark Trial and Appeal Board (TTAB) of the Patent and Trademark Office (PTO) to cancel a trademark registration that "may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute. Unlike claims regarding the validity of the mark, a disparagement claim can be brought "at any time," subject to equitable defenses such as laches.

Examples of disparagement

The TTAB has interpreted the Lanham Act to give broad standing to parties who claim they may be injured by a mark. In one case, the TTAB permitted two women to seek the cancellation of a chicken restaurant's slogan, "Only a Breast in the Mouth is Better Than a Leg in the Hand." Other examples of trademarks that were refused or cancelled for disparagement include a depiction of Buddha for beachwear, use of the name of a Muslim group that forbids smoking as a cigarette brand name, and an image consisting of a large "X" over the hammer and sickle national symbol of the Soviet Union.

In 1999, the TTAB issued a decision in which the trademark of the Washington Redskins football team was canceled under this provision, based on the claim that the name Redskins was disparaging to Native Americans. On appeal to the federal district court and then to circuit court, the TTAB's decision was reversed in 2005 in Pro-Football, Inc. v. Harjo as the laches defense as applied to the particular plaintiffs who brought the complaint was not considered. However, this case was ultimately dismissed when remanded to the District Court.

Determination of disparagement

The PTO uses a two-step test to determine whether a mark is disparaging to a group of people:

  1. Would the mark be understood, in its context, as referring to an identifiable group of people?
  2. May that reference be perceived as disparaging to a substantial composite of that group?

Whether a mark involves an identifiable group involves consideration of:

  1. The dictionary definition of the term;
  2. The relationship of the term and other elements of the mark;
  3. The type of product upon which the mark appears; and
  4. How the mark will appear in the marketplace.

Registration of terms that are historically considered disparaging has been allowed in some circumstances. Self-disparaging trademarks have been allowed where the applicant has shown that the mark as-used is not considered by the relevent group to be disparaging. One example of a registered mark with a self-disparaging term is Dykes on Bikes.

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