Supreme Court Amicus Brief in Support of Petitioners, Harjo v. Pro-Football, Inc.

Abstract

Disparagement claims belong in the category of trademark cancellation claims that are not subject to laches defenses because the harm to the public in the continued registration of the mark outweighs any private harm that may be caused by the delay. This exception categorically precludes application of the laches defense and does not require a balancing of the equities that occurs in ordinary cases involving a laches defense. Courts have recognized that the equitable defense is inapplicable in disputes in which there is a public harm caused by the continued legislation and enforcement of the mark.

Disparagement claims explicitly target the public harms of perpetuating offensive stereotypes. If laches defenses are barred in cancellation claims that only implicitly protect the public, then that doctrine clearly extends to cancellation claims that explicitly protect the public from harm.

Keywords: trademark, disparagement, laches