Posted by Eugene Volokh: Laches Proves To Be the Most Valuable Player: http://volokh.com/archives/archive_2009_05_10-2009_05_16.shtml#1242409156
In Pro Football Inc. v. Harjo, several American Indians were challenging the validity of the Washington Redskins trademark on the ground that it was "disparaging," which trademarks aren't allowed to be. (The [1]federal trademark statute provides that, among other things, marks generally aren't allowed when, among other things, they "[c]onsist[] of or comprise[] immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.") If the plaintiffs had won, that wouldn't have legally barred the trademark owners from using the mark; but it would have stripped the owners of some of the legal rights they'd have to police the mark against infringers, and thus would have given the owners some incentive to switch to a fully legally protected mark. The trouble is that the challengers apparently waited for a long time in bringing the lawsuit, which triggers "laches, an equitable defense that applies where there is �(1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.�" The district court held in Pro-Football's favor, and the [2]D.C. Circuit just affirmed. Other American Indians who just turned 18 could still bring the same substantive claim, since they would not have exhibited any "lack of diligence." Still, this is a pretty big victory for Pro Football. Even if it has only delayed the possible cancellation of the mark -- not at all clear, since they might eventually win on the merits -- it has gotten many extra years during which to exploit it (and I take it that the league's judgment in defending this lawsuit has been that the Redskins mark is much more valuable, at least right now, than any replacement mark would be). Thanks to [3]How Appealing for the pointer. References 1. http://www4.law.cornell.edu/uscode/15/usc_sec_15_00001052----000-.html 2. http://pacer.cadc.uscourts.gov/common/opinions/200905/03-7162-1180994.pdf 3. http://howappealing.law.com/
_______________________________________________ Volokh mailing list [email protected] http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
