10 Wake Forest Intell. Prop. L.J. 177
The Trademark Trial and Appeals Board (“TTAB”) has experienced an uptick in challenges to the federal registration of trademarks as disparaging to discernable groups of individuals brought before it in recent years. Under § 2(a) of the Lanham Act, disparaging marks cannot be placed on the Principle Register. While the TTAB has developed its disparaging mark jurisprudence with respect to individuals as a distinct bar to registration over the last twenty years; the Federal Courts’ have only considered the TTAB’s treatment of these allegedly disparaging mark once during the same span of time. The TTAB’s decisions regarding allegedly disparaging trademarks subsequent to the Federal Courts’ approval of the basic two-prong test for finding a trademark disparaging have uncovered the flaws with the TTAB’s approach to these marks. These flaws create insurmountable hurdles for petitioners seeking to cancel a disparaging mark. Ideally a Federal Court will address these hurdles in the inevitable appeal of the TTAB’s decision in Blackhorse v. Pro-Football, Inc. This article seeks to identify these hurdles to resolving whether or not a trademark is in fact disparaging in degradation of the Lanham Act and proposes pragmatic means for minimizing these hurdles.