You may have heard about the Discovery channel’s popular TV series, Amish Mafia.  The Discovery Channel describes the show:

Untrusting of outside law enforcement, some Amish in Lancaster County, PA have for many years regularly turned to a small organized group of men for protection and justice. Discovery’s new series Amish Mafia provides a first-ever look at the men who protect and maintain peace and order within the Amish community in Lancaster.

This has the Amish community quite upset because, they say, there has never been a so-called Amish Mafia and that any suggestion that the Amish would be involved in such an endeavor is disparaging, insulting and bigoted.  Amish culture values pacifism and harmony, not “violence and retaliation.”

According to the Philadelphia Inquirer, there are a number of Lancaster County activists taking the bull by the horn.  Mary Haverstick has the led the charge by creating the web site. Governor Corbett and congressional officials have sent a letter to the Discovery Channel requesting it to pull the show.

So why are we writing about this?  Is there an intellectual property angle here?  Of course.  The Inquirer also reports that Brad Igou, president of the “Amish Experience” has created an “Amish Mafia Exposed” tour.  So, predictably, the Discovery Channel wrote Mr. Igou a cease and desist letter, accusing him of trademark infringement.  Well, maybe, but how strong is that allegation?  You may recall that we wrote recently about the Washington Redskins’ troubles at the USPTO.  Its trademark registrations were cancelled by the Trademark Trial and Appeal Board on the basis that they are disparaging to Native Americans.

We took a look at the trademark filing for AMISH MAFIA as it pertains to entertainment services and, consistent with the Redskins case, the USPTO denied the Discovery Channel’s application on grounds that

AMISH MAFIA as used for the applicant’s entertainment services conveys the idea of a criminal organization composed of members of the Amish religious sect, and such a meaning is disparaging to a substantial composite of that religious sect.

Of course, the Discovery Channel has appealed but, in the meantime, all it has are common law trademark rights governed by Pennsylvania law.  No doubt, under Pennsylvania statutory law, the Discovery Channel would have the same problems registering AMISH MAFIA in Pennsylvania as it does on the federal level.  Pennsylvania law prohibits registration of trademarks that disparage a person’s beliefs or bring them in disrepute.  Whether Pennsylvania courts apply this standard to a common law trademark, to the best of our knowledge, has not been determined.  This will be an interesting story to follow.
— Adam G. Garson, Esq.