Court decisions involving Native American Tribes may have a dramatic impact on the IP World

Some industry experts predict that Native American tribal organizations and their business development authorities may expand into the technology world to take advantage of their sovereign immunity from patent infringement claims.  A New York district court held that the immunity applies to activities that are both commercial and non-commercial as well as to activities on and off the reservation.  Home Bingo Network v. Multimedia Games Inc. (ND NY Aug. 30, 2005); see also Specialty House of Creation Inc. v. Quapaw Tribe of Okla. (N.D. Okla. Jan. 27, 2011).

In another court decision, the term “Redskins” was deemed derogatory.  There has been movement to have the USPTO cancel the NFL team’s trademark registration on the basis that derogatory terms cannot be registered.

I have a problem with these decisions.  As to the trademark matter, the mark was legitimately registered and has acquired significant property rights and value over long periods of commercial use.  I understand that the term may be offensive in the current social climate.  I support policies preventing new marks or new uses of terms like this from obtaining legal protections.  However, cancelling a long-standing mark is like “ex post facto” laws being applied.  Bad publicity or public relations are the forces that should cause the NFL team owners to change their identity and team name.  I don’t believe the government should unilaterally take away earned property rights because of a shift of opinion or cultural sensitivities.

I also have a hard time balancing the interests of the Native Americans and patent holders.  The laws have been increasingly protecting patent holders from infringement by government entities.  By giving Native American organizations a free pass, are we creating a loop hole to be exploited?

What do you think?  Share your opinions and comments on these issues so we can create a community dialogue.