Friday, May 17, 2013

Legality vs. Morality - Trademark Edition

Pixar is working on a film with the theme or subject Dia de los Muertos, the Mexian holiday honoring the deceased. As film companies typically do, Disney, Pixar's parent company, applied for trademarks using the anticipated name of the film in relation to a variety of merchandise.

Needless to say, people of Mexican heritage were upset. To quote one commenter, "This is not Ok. You cant trademark my culture! [ ]"

But is that necessarily true? For example, the NFL football team, the Washington Redskins, has in fact registered WASHINGTON REDSKINS for "Entertainment Services-Namely, Presentations of Professional Football Contests." So it does seem to be perfectly legal to register cultural marks. Even the cheerleaders have their own trademark.  (Note, the Supreme Court declined to decide a case which argued that use of the Washington mark was offensive.)

Section 2(b) of the Lanham Act prohibits the registration of a mark that “consists of or comprises 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.” 

In Trademarks Laid Bare: Marks that May be Scandalous or Immoral, the authors delve into this issue and more. The take away for future lawyers is this, however: how will you conceive of your job? Do you give legal advice, providing guidance on legal risks and the likelihood of violations of the law? Or do you give business advice: something perfectly legal may nonetheless be inadvisable. But perhaps you must know your client to assess what role they'd like you to fill.