That USPTO ruling about the REDSKINS trademarks

Just a quick note about that ruling by the US Patent and Trademark Office on the REDSKINS trademark.  (That’s how trademarks are customarily written in legal documents, by the way: in all caps like that.)  This is prompted by news stories about various Republican talking heads characterizing the ruling as “just another day in Obama’s America.”  In fact, the USPTO has been very clear on how they feel about this issue since 1994, when Clinton was President.  So they can blame it on him, if they want, but perhaps we’ve all moved on from Clinton at this point.

At any rate.  Way back in 1992, a number of plaintiffs, including a Native American activist named Suzan Harjo, filed a complaint with the USPTO about the trademarks violating a law that says that federally registered trademarks can’t contain “matter which may disparage . . . persons.”  (15 USC 1052(a), if you want to look it up.  Part of the Lanham Act, which is the fundamental federal trademark law.)  Actually, we keep saying “USPTO,” but the body that handles these complaints, which aren’t exactly lawsuits but resemble them pretty closely, is a special section of USPTO called the Trademark Trial and Appeals Board, or just TTAB to its friends.  In response to this disparagement complaint, the Redskins asserted a number of defenses, including things like First Amendment free speech, and also including something called “laches,” which is going to be important in this story and I’ll get to it in a minute.  But TTAB wasn’t having any of any of them.  In 1994, they issued an order saying “all of those defenses are bullshit” (though in somewhat more formal terms).  So that was basically the point in time where TTAB first indicated that it considered REDSKINS to violate the rule that federally registered trademarks have to be non-disparaging. But then, for reasons I haven’t found an adequate explanation for, they just didn’t do anything for five years.

In 1999, TTAB finally got around to doing the same thing they just did yesterday: they issued an order de-registering the trademarks.  Just another day in Clinton’s America.  But the team wasn’t done fighting.  (Insert sports metaphor about “overtime” or “sudden death” or “clock running out”; I don’t do sports metaphors, even in articles like this where they’d be entirely appropriate.)  They appealed TTAB’s decision to the next-higher-up court, which is the Federal District Court for the district of D.C.  And the District Court said “Hey, wait.  That laches thing?  That sounds right to us.”

So, laches.  It’s pronounced “latches,” first of all.  It’s an archaic French word, and that doesn’t sound very French, but that’s how we mostly say it.  What it is is the legal principle that once something happens that enables you to sue someone, you need to be somewhat prompt about it.  It’s a little bit like a statute of limitations, but loosy-goosier.  Statutes of limitations are very well-defined: for example, if I do something negligent and I injure you, you have two years (in California, anyway) from the date you sustained the injury to get to the courthouse and file a lawsuit against me.  If you get there in two years and one day, your lawsuit is not permitted.  There are exceptions, like there are to everything in the law, but that’s the general idea.  Laches, on the other hand, is the principle that you can’t dilly-dally around when you have a basis for filing a lawsuit, but there’s no specific timeframe.

Laches doesn’t come up very often, because for most things you might sue someone over, there’s a statute of limitations, and if you get your lawsuit filed within it, there’s ordinarily no basis for a laches defense.  (Sometimes, yes.  That’s why I said “ordinarily.”)  But in disparagement actions, it turns out there’s no statute of limitations; the statute says that the claim can be brought at any time.  Nevertheless, the District Court said that the plaintiffs, the people who had filed the complaint, Ms. Harjo and the rest of them, had waited too long to file it, because the offending trademarks were registered way back in 1967.  So in 2003, the District Court overturned TTAB’s de-registration order on the basis that the complaint was barred by the laches doctrine.

“But wait,” said the plaintiffs in their appeal to the next court up the food chain, the Court of Appeals for the D.C. Circuit.  “The laches defense doesn’t cut in until the plaintiff reaches the age of 18, because nobody expects kids to be hanging out in courtrooms litigating things.  And one of our plaintiffs, a guy named Mateo Romero, was a mere lad of 26 when we filed our complaint with TTAB.  So he only waited a piffling eight years from the time he was qualified to file the lawsuit.  Surely that’s prompt enough.  The laches defense doesn’t apply to him, does it?”  The D.C. Circuit thought that this was a reasonably good point, but deciding whether the laches defense applies involves an analysis of how much prejudice the defendant has suffered as the result of the plaintiff’s delay in filing the lawsuit, and for reasons I’m not going to get into right now, trial courts are better equipped than appellate courts for gathering and analyzing factual evidence.  So in 2005, the D.C. Circuit punted the case back to the District Court to determine whether the laches defense applied to Mr. Romero.  (Umm, guess I blew it on the sports metaphor thing.)

In July of 2006, the District Court, predictably enough, said that it did.  That eight-year delay, according to them, was enough to inconvenience the football defendants so badly that the case should be dismissed.  That pretty much killed off the complaint.  The plaintiffs tried to get the U.S. Supreme Court interested, but the Supremes don’t have to take cases they don’t want to take, and in 2009, they said they didn’t want to take this one.  The end.

The case that just got decided by TTAB yesterday was filed in 2012.  TTAB’s decision was great and everything — well, I think it was — but it was hardly unexpected.  This is the exact same issue they considered back in 1992, and they said the exact same thing yesterday that they said back then.  I would imagine, though I haven’t checked, that the plaintiffs this time around included someone who was not more than a few days over 18 years old, which should take care of the laches problem; obviously they’re not going to make that mistake again.  But it seems inevitable that the team’s lawyers will be running a full-court press in the District Court (whoops!  damn) to get this overturned on some other grounds.  God knows what they’ll come up with, and God knows what the court will say about it.  My fundamental point here is that while this is a great first step, so far they’ve only managed to get to someplace they’ve already been.