NSA, Its Seal, and the First Amendment

Speech, Citizenry, and the Market in real life. It seems the NSA has invoked a public law to prevent someone from making parody NSA T-shirts. The shirt displayed the seal and the words “THE NSA, The only part of the government that actually listens.” The NSA was not amused. The first site to offer the shirts stopped offering the shirts after a letter from the NSA (apparently they were able to talk about that one for now). The NSA wrote to one online outlet, “The NSA seal is protected by Public Law 86-36, which states that it is not permitted for “…any person to use the initials ‘NSA,’ the words ‘National Security Agency’ and the NSA seal without first acquiring written permission from the Director of NSA.” The company, Liberty Maniacs, has sued under the First Amendment. That case may be near settlement.

In the Liberty Maniacs case, the obvious parody should suffice. If not, I suggest that the NSA is public figure entity and so mocking it by using its name and logo (just like we use a person’s name and face) should be protected under that reasoning as well. That said, I would think that under Alvarez, most special laws regarding seals, the Olympics, and so on will need some extra explanation to stay in place.

The video below is from Cafe Press which also offers the shirts and mugs.

Santa’s Brand

Quietbook has a mock re-branding Santa guide up. It is a “refresh.” Refresh. The word triggered a flashback to corpspeak where irony goes to die. I scanned the rest of the page. “*Santa* is a Concept, not an idea. It’s an Emotion, not a feeling. It’s both Yesterday and Today. And it’s Tomorrow as well.” Ah yes. They get it. The Santa Brand book is a great example of the way branders operate. I dove into those ideas in my paper From Trademarks to Brands. These folks take you on a similar but funnier journey. Good times and a belated but truly meant Merry Christmas and Happy Holidays to all.

Opportunity for Professor at INTA Annual Meeting 2014

The International Trademark Association (INTA) is looking for one professor to be chosen as a Table Topic moderator for the 2014 Annual Meeting to be held in Hong Kong next May.  (For those who aren’t aware, the INTA Annual Meeting is a conference of about 9,500 trademark professionals from more than 140 countries.  It is a good opportunity to stay up to date on the latest issues in trademark law, talk with key stakeholders, connect with colleagues from around the world, and get a lot of CLE credit.)

While INTA represents brand owners and has historically spoken from that perspective, INTA has made concrete and serious efforts over the last several years to broaden its base and include the voices of academics in its programming, particularly during the Annual Meeting.  (Frankly, that is what caused me to join the Academic Committee, to work toward the realization of that inclusive voice.)  The Annual Meeting now features an entire day of academic programming, including a Professor Panel, where academic thought leaders present their perspectives on issues such as trademark boundaries, functionality, and overlapping doctrines, and a Scholarship Symposium, where papers are workshopped by both academics and practitioners.   The Professor Panel has become one of the most popular panels at the Annual Meeting.

INTA has also expressed interest in reaching out to professors who might be interested in leading Table Topic discussions in a particular area.  Table Topics are two-hour discussions limited to ten participants on a wide variety of topics related to trademarks.  Participants at the Annual Meetings register (and pay) in advance for a seat at the table to discuss, and the seats typically fill up quickly, so it can be a good opportunity to generate discussion if professors happen to be working on scholarship ideas that might benefit from input from diverse perspectives, particularly from an international audience.  I have personally found it helpful for my own scholarship—it’s not always easy to find a (captive and) interested audience to discuss an issue for two hours straight.

A sample of topics from the 2013 Annual Meeting can be found here.  If you would like to be considered, please send a short paragraph describing the general topic to me at mcarpenter@law.tamu.edu, by Tuesday, October 15.

The downside:  INTA does not cover travel expenses.

 

The Team Who Will Not Be Named: The Redskins and Slate

This week, Slate announced that it would stop referring to the NFL team from Washington, DC, as the Redskins.  With this decision, Slate joins Washington’s City Paper, as well as the Buffalo News and the Philadelphia Daily News, in their refusal to use the Redskins moniker.

Litigation over the Redskins trademark has been protracted and convoluted.  Substantively speaking, the litigation has focused on disparagement, which allows a trademark registration to be cancelled if it is disparaging to a substantial composite of a referenced group.  Pro Football, Inc. v. Harjo was, however, decided on laches, which is a particular vulnerability for plaintiffs claiming disparagement.  (In this particular case, it  has also resulted in an odd situation whereby a new case has been filed in the TTAB over the same issue but with younger plaintiffs.)

The standard for disparagement is less than clear.  Many TTAB decisions and court opinions have found that a mark just is disparaging with little supporting analysis.  What is enough to be “substantial”, and what the parameters of a “referenced group” are, are often problematic (and have both been particularly problematic in the context of the Redskins litigation).  Another problem with the standard is that it requires a mark to be disparaging at the time of registration.  Thus, if a trademark was registered at a time when racism was socially acceptable, it might be more difficult for plaintiffs to petition for cancellation—either because members of the group internalize that racism, or because the groups are not empowered enough to bring an action for disparagement in a timely fashion.

Extra-legal solutions, such as the decision by Slate and other media outlets, can be more effective than courts at addressing these issues.  It’s not because of litigation, but because of market forces (including an evolving social and cultural climate), that a trend has developed toward elimination of American Indian school mascots at both collegiate and high school levels. The NCAA has banned conference play for teams with American Indian mascots, resulting in changes to more than a dozen teams.   Other Universities, such as the University of Wisconsin-Madison and Iowa, have refused to schedule non-conference games against teams with American Indian mascots.  Outside the courtroom setting, increased pressure has resulted in a steady decline of use of American Indian references in sports teams across the US.  Whether or not these pressures reach the NFL team from Washington DC, however, remains to be seen.