CNN Money Botches Redskins' TM Case

After a promising headline ("Redskins ask Supreme Court to hear trademark case"), CNNMoney's description of the legal status and issues in that matter leave a lot to be desired.  While I don't expect laser-like precision from lay reporters, this particular article is light on accuracy. For example, the article states:

The Redskins were told by the U.S. Patent and Trademark Office in June 2014 that the team could not trademark its name because federal law prohibits the registration of anything "scandalous, immoral, or disparaging."

I get what the writer is trying to say - and I'm not one to pick nits with lay reporters - but this is really misleading.  The USPTO canceled six registered trademarks based on the (federal trademark law) Lanham Act's section 2(a) provision against registering a mark or marks that may "disparage" others.  While the federal trademark law does empower the USPTO to prevent registration of such marks, that does not mean that the team cannot "trademark" the "name".  The posture of the Washington Redskins' case is that six registrations of the many marks that the organization possess (either registered or unregistered) have been cancelled from the federal principal register; legally, the organization may (and still does) use the six marks as it has before, since the cancellation of the registered marks has no impact on the usage of the marks in commerce.

As egregious is this sentence:

Revoking its trademark does not mean the Redskins won't be able to keep its name, but losing trademark protection would allow anyone to sell goods with the Redskins name or logo without paying the league as they now must do.

Despite the cancellation of the six registered marks (pending the likely consolidation of appeals / writ for certiorari of the "REDSKINS" and "THE SLANTS" cases), the organization has NOT lost trademark protection.  In fact, the value derived from a trademark springs from the use of the trademark, not the registration.  And registration is not a requirement (unlike copyright) for adopting, using, and enforcing trademark rights. Accordingly, the organization has not lost any of its substantive trademark rights and protections, and any would-be business thinking that it can pilfer these marks for t-shirt or apparel applications would quickly find itself in the cross-hairs of a trademark infringement suit.

In particular, the Lanham Act specifically sets out that unregistered trademarks are protected from the likelihood of source confusion (section 43(a)) in a manner very similar to the protections extended to registered marks.  Although the procedure and proof required to demonstrate to a court/jury that a mark enjoys such protection is slightly higher than if the mark was registered, for lack of a government issued certificate that carries some weight, if adoption, usage, maintenance, and overall-ownership is so demonstrated, the analysis for the likelihood of source confusion is nearly identical whether the mark is registered or unregistered (with some variants between circuits on the number of factors considered in a likelihood of confusion analysis).

Kudos to CNNMoney for revealing that the football organization is seeking a consolidation of its case with "THE SLANTS"; the impact on the organization's appeal to the Fourth Circuit Court of Appeals (pending) is unclear, though.

Prince - More Than a Symbol (Coda)

As the founder and main creative engine of Paisley Park Enterprises, Prince was in the possession of approximately 10 registered trademarks still active and maintained at the time of death (the total exceeds 50 when including formerly used but now "dead" or inactive marks).  While "PRINCE" and "NPG" (or New Power Generation) are well known monikers, the "symbol" may be the most well-known of Prince's many marks, which is an interesting juxtaposition given that he later adopted the symbol as his persona as a means to divorce the artist formerly known as "Prince" from the legal and business stranglehold of Warner Bros. records. prince-brandmark-logoOne of the first uses of this icon was in the body shape of a Prince guitar.  Later, this symbol was the subject of several trademark applications that matured into federally registered trademarks for a variety of goods and services.  Those four registered marks continue in use.

Despite the extremely symbolic nature that this icon came to represent, a symbol that was used to publicly draw attention to the IP ownership and control issues faced by many recording artists, it is rather coincidental that a musician driven to haggle with his record company for a decade-plus over his creations was later pitted against his fans with the same control issues over his work.  In the advent of the world wide web and the ability to electronically save and share data, at first it was the Napsters, Gnutellas, Kazaas, Aimsters, and the various peer-to-peer file-sharing platforms and then the multi-media platform of YouTube (and other lesser platforms) that surely gave the artist and his team headaches - a digital version of the carnival game "Whack-a-Mole".

Although many of the p-2-p platforms have diminished in popularity, YouTube is a different animal - and Prince was no shrinking violet when it came to the Digital Millennium Copyright Act's "take down notice" procedure.  If popular press is to be believed, at the least, it seemed as though Prince was the main musical bully scouring YouTube for his content popping up in whatever video-based work, regardless of how imaginative or trans-formative.  Before his death, scant-little Prince content was available on YouTube; as soon as someone was brave enough to post any back-catalog work, a DMCA take down notice quickly turned that video link into a snowy-video.

Even more noticeable and interesting in the days since his death - YouTube is now littered with Prince material.  Whether those with monetary interests in the Prince catalog allow this unauthorized usage to continue unabated will be interesting to observe.  It is rather ironic that the very platform that the artist resisted in using for sharing his back-catalog is now being used to shower the artist with admiration.  However, it would hardly be surprising to learn that Prince envisioned this very thing.

Let's also hope that the man engaged in the appropriate forms of estate planning - and that those left with the responsibility of handling his estate for the foreseeable future prevent unauthorized exploitation of his name, image, and likeness.  As so many estates of celebrities have learned, there is no shortage of free-riders willing to use the image of Elvis, Sinatra, and so many others to peddle sketchy merchandise.

RIP.  Thank you for the music.

Group Disparagement Redux - The Slants & The Skins

Last year, this author discussed the decades-long battle that the NFL's Washington Redskins has waged against opposition to the continuing (and future) registration of several trademarks in its possession (here and here).  In those posts, this author high-lighted the ill-founded logic used in the Federal District Court judge's opinion (as overlapping with the TTAB decision at the USPTO).  In particular, when viewed in context, as is required of trademark usage in most-all litigation settings, the six trademarks at issue cannot reasonably be said to refer to a race or ethnicity of people, much less in a disparaging way that warrants cancellation of the marks under section 2(a) of the Lanham Act. In more recent months, the Court of Appeals for the Federal Circuit (CAFC) reversed the Trademark Trial and Appeal Board (TTAB) and its refusal to register the term "THE SLANTS" as used in association with the music services of an Asian-American band of the same name from Portland, OR.  In essence, the en banc panel of the CAFC (9 of 12 judges) determined that section 2(a) was an unconstitutional content restriction on free-speech. As a reminder, section 2(a) is the provision relied upon by challengers (over the years) to the Washington Redskins' various registrations.  Not surprisingly, the USPTO has appealed the decision in "THE SLANTS" case and awaits word whether the US Supreme Court will grant certiorari and attempt to resolve this matter.

Notably, in its petition for writ of certiorari, the USPTO essentially argues that section 2(a) of the Lanham Act does not restrict free speech by refusing to register marks that "disparage" people or groups but instead is a lawful criteria for eligibility on the federal trademark register within Congress' power.  The petition is well organized and argued, and references several seemingly favorable federal court cases in support of a very nuanced argument.

Whether the US Supreme Court will grant cert (and render a meaningful decision) is subject to considerable conjecture.  Despite the fine pedigree of the Supreme Court justices, many practicing intellectual property attorneys will bemoan the decisions of the Supreme Court on patent, copyright, and trademark cases.  Since this is being presented as a First Amendment challenge within a trademark context, there is a good likelihood that the Court will grant cert - but the ideological divide of the court will likely rear its head and result in a 4-4 split and the CAFC's en banc decision will stand until the next opportunity.

Whether the CAFC's decision should stand is a matter I will have to address in a future post.

Prince - More Than a Symbol (Pt. 5)

In previous entries, the focus was predominantly on the legal and business obstacles Prince encountered or raised during his fruitful but tumultuous tenure at Warner Brothers Records (1978-1996 - spanning 18 studio records).  In this part, the focus will shift slightly to Prince's writings and publishing.  Although prolific in his own right for writing and recording much of his own material, Prince was also a bit generous with his writings, offering these songs to others when appropriate. In the past several days, there have been a handful of articles published identifying songs that many folks may not have known were penned (at least in part) by Prince.  One of the more famous examples is The Bangles' hit single "Manic Monday" that is officially credited to Christopher (one of Prince's many pseudonyms).  "Manic Monday" peaked at #2 on the Billboard Hot 100 Singles Chart, and denied the top spot by (wait for it) - Prince's "Kiss" (from the album Parade).  However, two other Prince-penned songs achieved similar chart success and acclaim: Chaka Khan's re-recording of "I Feel For You" (originally recorded by Prince in 1979); and Sinead O'Connor's "Nothing Compares 2 U" (originally recorded by Prince-produced funk band The Family, and later recorded live by Prince with Rosie Gaines).  O'Connor's "Nothing" topped the Billboard Hot 100 for four weeks ("I Feel For You" peaked at #3).

Other notably successful songs/singles written in whole or in part by Prince include a song recorded by The Kid's nemesis from the film "Purple Rain" - Morris Day and the Time's "Jungle Love" (and the memorable dance from the video), as well as Sheila E.'s "The Glamorous Life" and "A Love Bizarre" (and keeping with the Prince-influenced alternate spelling).  In fact, Prince provided vocals to "A Love Bizarre" though the song was not officially pressed or marketed as a true duet between the two.  Prince also wrote "Sugar Walls" (recorded by Sheena Easton), someone he would later join for a duet on "Arms of Orion" from the "Batman Soundtrack".  Prince also wrote "Love . . . They Will Be Done" that was recorded by former child-actor Martika.  And, Prince contributed a synth part to Stevie Nicks' "Stand Back" (which was inspired by Prince's "Little Red Corvette".

Because Prince owned publishing rights in these songs, many of them he owned out-right as the sole writer, he also reaped additional financial reward through the publishing royalties monitored by the performing rights organizations (PROs - such as ASCAP or BMI).  Quite often, publishing royalties form a lucrative part of the musicians arsenal, esp. as hit songs continue to resonate with future generations and become subject to reuse in advertising and film.


Prince - More Than a Symbol (Pt. 4)

Although Prince was annoyed (if not frustrated) by Warner Bros. controlling the throttle on his musical output, further exacerbated by Warner Bros. shutting-down Prince's "independent" Paisley Park Records (based in Minneapolis), the real frustration and anger bubbled from the control that Warner Bros. had over the artist's back catalog.  For certain, this was the standard in the industry, but it did not subdue to feelings that artists had little control over their works, and worse - they had no ownership stake in the sound recordings. As he recalled during a lengthy interview with CNN's Larry King in Dec. 1999, Prince explained this chief complaint about the industry (and Warner Bros. in particular), manifesting as an issue of monetization and control.   As noted in the interview, Prince said he would have to re-record individual titles to gain control over back catalog songs, and that he had re-recorded "1999" (a new master recording) for this purpose.  This is a practice that has become more common-place (esp. in light of the sec. 203 termination provision); on the extreme end of the scale, in 2012, Def Leppard began re-recording their classic hits as a way to bypass their label's (Universal Music Group) accounting methodology for digital downloads.

Against this backdrop, and unable to shake WBs bonds over his works, Prince began to implement a rather interesting series of tactics to leverage some control away from the company.  At first, Prince scrawled the word "Slave" onto the side of his face - an intentionally bombastic and inflammatory visual cue.  On the legal side, the artist adopted a symbol as his recording and performing persona, an amalgamation of the male and female symbols - while dropping all reference to "Prince" and eventually referenced as "The Artist Formerly Known As Prince", "TAFKAP", or simply "The Artist".

By disassociating himself from his stage name "Prince" and adopting a wholly different symbol as a reference point, in a somewhat humorously coincidental turnabout, Warner Bros. was forced to promote "Prince" material without much cooperation from the artist himself.  For example, the single "The Most Beautiful Girl in the World" is Prince's only no. 1 hit in the UK - it was recorded and released approx. 18-months before it appeared on a "Prince" album (The Gold Experience - released Sept. 1995), a move that was mostly unthinkable in that era.  Even more astonishing is that Warner Bros. allowed The Symbol to release and distribute the single through a series of independent labels and distributors - something that Warner Bros. probably regretted as the single ascended the charts (esp. in the UK), but was conceded as a means to appease the musical star.

The tensions between The Symbol and Warner Bros. were somewhat resolved by the artist gaining his release from the Warner Bros. label in 1996 - an event celebrated by the artist in naming his first release on his new label "Emancipation" - and not surprisingly, a triple-length album at that.  Ironically, this was the third release by Prince/The Symbol in 1996, with Warner Bros. having released the other two albums before EMI released "Emancipation".

Despite the difficulties between the parties, this would not be the last time the artist would work with Warner Bros.  As part of a significant (and unusual business deal in the music industry), in 2014, Warner Bros. agreed to assign the ownership of his master recordings back to Prince in exchange for a business deal that brought Prince back to Warner Bros. (though it is not clear whether the masters are returned in one large package or piece-meal according to the Copyright Act's termination provision in sec. 203).

This deal also led to the release of two full-length albums (see 2014's double release of "Plectrumelectrum" and "Art Official Age") on the same day.   The deal seemed to place Prince in control of his work, but with the understanding that Warner Bros. would be the go-to distributor on his Warner Bros. back catalog and on any new material produced through Prince's "independent" NPG Records label.  The impending opportunity for Prince to recapture the sound recording copyrights (originally assigned to Warner Bros.) certainly shifted the leverage in his favor and cleared the deck for Prince to finally wrest control over his WB works from the company.

(Part 5 will take a look at other aspects of intellectual property that Prince utilized to his favor)

Prince - More Than a Symbol (Pt. 3)

In part 2, I made note of the Sec. 203 of the Copyright Act and the provision that allows recording artists to recapture copyrights originally assigned to the recording companies, (usually the master recordings).  Otherwise, recording companies have generally held on to the assigned copyrights in the recordings to squeeze out all the sales conceivably available from a full-length album until sec. 203 rights manifest. By the time Prince was signed with Warner Bros. (1978), the recording industry was utilizing a fairly tried-and-tested method of utilizing new artists.  This included recording, mixing, and mastering new material, mass producing the material, and promoting the record (and the artist) through touring.  For new artists, a new batch of material for release was expected on a fairly steady twelve-month cycle.

For many artists, this proved to be a grueling process - especially the incessant touring.  Moreover, as artists became established, and their contracts were re-negotiated, the time-crunch eased somewhat, thereby allowing artists to move to a two-year cycle.  For most.

Prince proved to be the exception - an artist ill-fit for contemporaneous business standards and a throw-back to the days of James Brown and Elvis Presley recording and releasing a new single every 8-10 weeks for months/years on-end.  Not content to write and record a single full-length album once per year, Prince proved rather prodigious in both the volume of his writing and the quality in the volume.

From 1984's "Purple Rain" soundtrack through 1992's "Love Symbol Album", Warner Bros. released one Prince album per calendar year.  On paper, there is hardly anything unusual or extraordinary about that fact.  Yet, the musical genius was constantly writing and recording and pushing the boundaries of the industry's business model.

For example, 1987's "Sign O' the Times" was a double-length album.  "Sign" was an outgrowth from a double-album conceived and recorded in 1985-86 with Revolution band-mates Wendy & Lisa that fizzled as those relationships fizzled.  After the release of "Parade" in 1986, Prince started work on what would become a triple-length album performed by an alter-ego of sorts (an "eponymous" title "Camille") that was also shelved.  All the while, Prince was also recording material to meet his contract obligations and also churning out excess material for artists like the Bangles, Sheila E., and other minor musical acts.

From Warner Bros. perspective, the company had a bit of a paradox on its hands.  In the newly established MTV generation, the public could not get enough of Prince (or so it seemed).  Yet, the fear of over-exposure is ever-present.  Moreover, in the post-Thriller music world, the life-cycle of albums and singles had changed, and the window for maximizing marketing opportunities for albums had lengthened considerably.   With Prince, Warner Bros. was not yet even phasing down its marketing for the current release when Prince was handing the company new material for distribution and promotion.  As is oft-said of basketball great Michael Jordan:  the only person that could hold MJ below 20 points was (college coach) Dean Smith; for Prince, the only party that could hold him back was the Warner Bros. machine.

Because of the leverage it possessed, Warner Bros. typically won these content-volume battles.  While certainly proud of the work he had recently wrote and recorded, Prince did not sit-back in admiration, but rather was always moving forward and living in the now.  His motto or creed seemed to be:  that [the past] is great, but what's next?  As Variety recently recalled in an interview with a former WBs executive, Prince had a lot to say and wanted to say it now (rather than later), and was unconcerned by the marketing and promotion perils caused by his high-volume approach.

(Part 4 explores the rising tensions between Prince and Warner Bros. that came to a head in the early 90s)

Prince - More Than a Symbol (Pt. 2)

As noted in the previous post, the unexpected death of Prince has generally dominated the news cycle since the news first broke late last week.  Because Prince was still a relatively young man (57 years old), and thought to be in generally good health, the news was obviously surprising and evoked strong reactions from friends and fans (and detractors, as well).  As a fan, I am disappointed that there will be fewer opportunities to watch Prince in the live arena - an aspect of his entertainment persona that was virtually unparalleled in skill and aplomb, even as he approached his 60th birthday. As a practicing attorney, and general observer of pop culture and the music industry, I am deeply interested in the trails that Prince blazed in defying conventional wisdom on several fronts, despite considerable resistance from the industry writ large and from the business partner he originally joined (Warner Bros.).  Because of (and in some cases, despite) his musical genius, the music that Prince wrote became both the backbone of his eventual empire and a threat to his partnership with Warner Bros.

Up until the Internet began to lower the barrier to entry for recording, reproducing, and distributing music, the record companies (a seemingly archaic label held-over from the golden-age or vinyl records) held virtually all the leverage by comparison to unsigned and unknown musicians.  A by-product of this imbalance was take-it-or-leave-it recording contracts that assigned the copyrights to the recordings to the company in exchange for money advances to live and record/duplicate/market a full-length album and a few points royalty on the sales of each record.

Prior to the comprehensive revision to the Copyright Act in 1976, it was extremely difficult for a recording artist to recapture the copyright ownership in the master recordings used by the record company to duplicate the work for mass production.  Even with the 1976 Act (at 17 U.S.C. sec. 203), the recapture of these copyrights requires the recording artist to wait a considerable period of time (approx. 35 years) to fully recapture the rights through termination of the original assignment of the master recording's copyright.  Because the 1976 Act did not become effective until Jan. 1, 1978, the full-effect of this provision of the Copyright Act has not become evident until the last few years (2013).  Short of this statutorily enforceable provision, recording companies have had very little motivation or incentive to voluntarily terminate these assigned rights.  Save for a persistent artist or two.

(Part 3 will continue this look at Prince and Warner Bros.)


Prince - More Than a Symbol

As a fan of Prince, and in particular the eclectic run of funk/rock/r&b/dance with Warner Bros. records from 1978 through the early 1990s, I could write at length regarding the genius of his writings, recordings, and performances, the depth of his reach and appeal, and the reflection of his influences that pour from this catalog.  While tempting, much of what I could say has likely been said in the many tributes that have emerged in the wake of the artist's death. Instead, over the next several days, I will examine the influence the man had on the music industry - legal and cultural.  Without question, Prince the artist became well-versed in the legal constructs of the music industry, growing to appreciate the legal and commercial heft of intellectual property ownership wields, whether it was to his personal detriment or benefit.  Although Prince Rogers Nelson briefly adopted an unpronounceable symbol as a means to fight Warner Bros. and its stranglehold on the performing artist known as "Prince", the musician and performer transcended categorization and the businessman merely used a symbol to achieve greater freedom than he previously enjoyed with his early catalog.

Accordingly, I will be reviewing the various aspects of Prince's career that touch-on intellectual property ownership and issues of ownership and control of exploitation, as well as how technology was both embraced and shunned.

As a true "child" of the 1980s - 7 to 18 years old bookend-to-bookend - it is undeniable that Prince (along with an impressive roster of other superstars) were the soundtrack to my young life.  Like the generation of my parents, this generation is starting to experience the deaths of their pop culture icons - a reminder that we grow older by the day and that life is (to pilfer Elton John) like a candle in the wind and that all the fame, wealth, and adoration of millions cannot stop the march of time.

The Washington Redskins Trademark Controversy - Part II

In part I, this author briefly discussed the recent decision by District Court Judge Gerald Lee (E.D. Va.) that independently agreed (under the statute's de novo review required by a district court) with the USPTO's Trademark Trial and Appeal Board's (TTAB) decision to cancel six registered trademarks for the NFL's Washington Redskin franchise.  In that entry, this author stated disagreement with both recent opinions, but without much analysis, saving the beginning of that discussion for this and future entries. As mentioned in the previous post, and although pilfered from John Adams and the Massachusetts Constitution (1780) and oft-applied to the Union that soon followed (1787), if this republic is a government of laws and not of men, and if the consent of the governed demands clearly written and applied laws and not the unpredictable will of the few, then these recent trademark decisions are but two of a growing list of decisions (and laws) violating these bedrock principles. 

To be clear, Judge Lee clarified certain issues that have been incorrectly conflated with the issues in this case (and the legacy case of Harjo).  For example, Judge Lee made it clear that it is the trademark registrations and not the trademarks that are at issue.  Rather, the statutory provision asserted (15 USC Sect. 1052(a) - "Sect. 2(a)") only allows for cancellation of the registration, not prohibition of use in commerce.  Neither the TTAB nor the District Court (in this instance) can prohibit the use of the marks despite any cancellation that may transpire.

Moreover, Judge Lee correctly pointed out (to anyone understanding and paying attention) that not only can the NFL franchise continue to use the marks in commerce despite any cancellation(s), the Lanham (trademark) Act allows a party to sue for infringement of its unregistered trademarks (15 USC Sect. 1125(a) - "Sect. 43(a)").  Therefore, despite the political and legal hand-wringing that continues over this matter, any speculated termination of the Washington Redskins trademarks is premature and highly exaggerated.

Now for the substance of Judge Lee's decision; as a preliminary matter, I am reserving comment on the constitutional questions for a future time.  IMO, the constitutional arguments are nuanced and deserving of considerable thought before comment.  Nor will I address the laches (unreasonable delay in pursuing suit) issue at this time.

Judge Lee's order was based on motions for (and opposing) summary judgment, which requires that there be no genuine issue of material fact and the movant is entitled to judgment as a matter of law (e.g., Fed. R. Civ. Pro. 56(a)).  IMO, this is problematic for several reasons.  First, to the question of whether a particular trademark has disparaging capabilities to a group of individuals, the USPTO asks: (1) is the mark understood as referring to an identifiable group of people? and (2) may that reference be perceived as disparaging to a substantial representation of that group?  Judge Lee answers:

[. . .] the record evidence shows that the term "redskin" in the context of Native Americans and during the relevant time period, was offensive and one that "may disparage" a substantial composite of Native Americans, "no matter what the goods or services with which the mark is used." [citation omitted]  p. 63

Despite their respective decisions, neither the TTAB nor Judge Lee seem to properly analyze question (1), both relying heavily on dictionary definitions to define "redskin" as an offensive term used in connection to Native Americans to skip ahead to question (2).  Yet question (1) is a threshold question - and if the mark is not understood as referring to an identifiable group of people, a tribunal does not reach question (2).

This is where the marks are of considerable importance.  While each of the six marks uses "redskins" in some manner, the usage is critical to answering question (1).  The six marks include:  a stylized (script) "The Redskins", the stylized "The Redskins" + arrow + Indian profile, non-stylized "Redskins", "Redskinettes", the word mark "Washington Redskins", and the word mark "Washington Redskins" + Indian profile.

It is highly arguable that any of the marks are understood to identify a group of people, since all of these marks are predominantly (if not exclusively) used in association with the NFL franchise and not as a pejorative against Native Americans.  "Redskinettes" and the two marks using "Washington Redskins" are particularly difficult to associate with a group/race of people when considered in context of commercial use.

As used, "Redskinettes" is a mark associated with the female cheerleaders of the football franchise, a term presumptively coined by the franchise and used only by the franchise in this association.  There does not appear to be any evidence that the term "Redskinette" is plausibly understood to refer to Native Americans.  It is doubtful that anything above a statistically insignificant number of Americans would understand this term to mean anything other than in connection with an athletic team nickname (although not necessarily the nickname itself).

Likewise, when used, the two marks utilizing "Washington Redskins" are clearly referring to the NFL franchise located near Washington, D.C., and not a group of Native Americans.  These marks are so identifiable with the NFL franchise that the experts used by the complainants could find scant-little instances of recorded usage of the term "redskin" as a pejorative after 1969 (with 143,000+ articles making at least one "redskin" reference, with the overwhelming majority of these references to the Washington D.C. pro football franchise).

Illogically, the TTAB majority noted that the extreme drop-off in usage of "redskin" as a derogatory term was evidence of the derogatory and disparaging nature of the term; in many circles, this is considered a logical fallacy (as evidence of absence and a false dichotomy).  One could more plausibly conclude that the drop-off in the use of "redskins" in a derogatory manner (compared to the number of actual media uses) is evidence of the strong association between the term and the NFL franchise.

Accordingly, it is reasonable to suggest that Judge Lee put the cart before the horse by divorcing the actual context of the marks as used and labeling the "context" of these marks as being understood to refer to Native Americans.  In part III, additional aspects of this decision will be examined.




As an intellectual property attorney, and a fan of certain aspects of pop culture and sports, it is interesting to observe the intersection and/or the interrelatedness of these areas.  As such, I will use this forum to make observations and provide interesting information on these topics, sometimes intersecting in dramatic or notable ways. I hope you enjoy.