Today Amanda Blackhorse and her co-defendants filed a motion to dismiss Pro Football’s complaint in federal court for lack of jurisdiction.  The defendants argue that although Pro Football and the Blackhorse Defendants sharply disagree over the U.S. Patent and Trademark Office ‘s decision to cancel the team’s trademark registrations as disparaging, there is no justiciable dispute remaining between them.  The “controversy” exists only between Pro Football and the government agency that cancelled the trademarks–the USPTO. Pro Football asserts no trademark ownership, infringement, or  other cause of action against the Native defendants. The motion points out that their dispute is ultimately only with the USPTO.

It is the USPTO – not the Blackhorse Defendants – that Pro Football claims has violated the Lanham Act and the Constitution in cancelling their trademarks. The relief Pro Football seeks is to prevent the final cancellation of the trademarks by the government. Pro Football seeks no relief against Amanda Blackhorse and her co-defendants and the federal complaint will not affect any of their legal or economic interests, no matter the outcome. The motion argues that Pro Football’s complaint should be dismissed for lack of jurisdiction because the defendants are not “parties in interest” against whom an action may be filed and there is no “case or controversy” for an Article III court to hear or resolve.

Ordinarily, the adverse parties in a trademark opposition or cancellation proceeding before the USPTO are businesses claiming rights to the same or similar trademarks. When a party dissatisfied with a decision of the USPTO brings actions under these same provisions, the party is usually involved in a dispute with a business that uses a similar trademark. It is clear in these cases that the other party using a similar and possibly infringing trademark is a “party in interest.”

This case is not that typical case. Here, the petition to cancel was not filed by a business with a trademark dispute, but by five Native Americans who sought cancellation of Pro Football’s trademarks on public interest grounds as provided for in the trademark laws.