Intellectual Property Law

As we have reported in the past, one function of the Trademark Office in reviewing applications for trademarks is to deny registration to marks that it deems consist of "immoral, deceptive, or scandalous matter" in accordance with section 2(a) of the Lanham Act. In keeping with that function, past Blawg posts have discussed the affirmance of the Trademark Office's refusal to register the mark W.B. WIFE BEATER for t-shirts   and the continued efforts of Native American groups to cancel the registration of the Washington Redskins trademark used by the D.C.-based NFL team.

Last month the USPTO's Trademark Trial and Appeal Board waded into this issue again in considering the examining attorney's appeal of the Squaw Valley ski resort's application to register the marks "Squaw" and "Squaw One" for clothing, ski equipment, and sporting goods retail store services. In re Squaw Valley Development Board, Serial Nos. 76511144 and 76511145, May 23, 2006.  The examiner initially refused registration under Section 2(a) of the Trademark Act, on the ground that the marks could "disparage American Indians or bring them into contempt or disrepute."  Id. at 3.  The Squaw Valley Development Board appealed, and after the Board reversed the examiner, the examiner sought reconsideration.

At issue was  "whether the meaning of SQUAW and SQUAW ONE is disparaging to . . . Native Americans."  The examining attorney submitted numerous excerpted stories from the Nexis database with statements regarding the offensiveness of the term "squaw" to American Indians, as well as state statutes that have renamed geographic sites having the name "squaw," or have banned the term from the names of public places.  Id. at 21-27. 

The Squaw Valley resort had previously registered the marks "Squaw Valley USA," and "Squaw Valley," and argued that the meaning of the proposed new marks "Squaw" and "Squaw One" was Squaw Valley, the ski resort, especially where Squaw One is the name of one of the chair lifts at Squaw Valley.  Id. at 3-4. In reviewing the evidence, the Board agreed with the ski resort when considering the use of the marks for ski equipment, concluding that consumers would think of the Squaw Valley ski resort when seeing the "Squaw" and "Squaw One" marks on ski equipment.  But as for registering the marks for either clothing or retail store services, the Board found that the evidence showed the marks disparaged a substantial composite of Native Americans when used in conjunction with goods and services, and upheld the examiner's refusal to register in these two classes. What do you think? Is this the right outcome?   Stay tuned for further updates on this ongoing issue.