From the Washington Post:
The United States Patent and Trademark Office has canceled the Washington Redskins trademark registration, calling the football team’s name “disparaging to Native Americans.”
The landmark case, which appeared before the Trademark Trial and Appeal Board, was filed on behalf of five Native Americans. It was the second time such a case was filed.
The decision is subject to appeal.
My first thought was to compare this to the plain packaging cases. Just for fun, let's say that the owner of the team was Canadian (he's not). Would he have a decent NAFTA Chapter 11 claim, based on various NAFTA (and perhaps TRIPS) provisions, in combination with the substantive investment obligations, that his trademark was improperly taken away?
But then I saw this in the NAFTA IP chapter, in Article 1708, para. 14:
Each Party shall refuse to register trademarks that consist of or comprise immoral, deceptive or scandalous matter, or matter that may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs or any Party's national symbols, or bring them into contempt or disrepute.
It seems that this provision is based on U.S. law. Here's an excerpt from the decision:
[T]hese registrations must be cancelled because they were disparaging to Native Americans at the respective times they were registered, in violation of Section 2(a) of the Trademark Act of 1946, 15 U.S.C. § 1052(a) [which bars, in relevant part, registrations of marks that "may disparage ... persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute"]. ...
At least in theory, it appears that Canada and Mexico could have brought a NAFTA claim on the same basis as the claim made before the U.S. trademark board!
