Image Credit: Esther Roberts

Formed in 1935,the Tennessee Walking Horse Breeders’ and Exhibitors’ Association (TWHBEA) serves as a primary promoter and record keeper for the Tennessee Walking horse breed. However, historically, the association has not been known to have the best track record in terms of advocating for the humane treatment of Tennessee Walking Horses. One concern sited by Tennessee Walking Horse activists is that TWHBEA has done little to prevent radical measures some walking horse owners have taken to enhance their horse’s performance at walking horse championship shows like TWHBEA’s Tennessee Walking Horse National Celebration.

Walking horses have traditionally been coveted for their famed four-beat “running walk.” With the introduction of walking horse championship shows, some horse owners have sought to make their horses perform an even flashier gait known as the “big lick.” Owners make their horses perform the “big lick” through the painful practice of “soring,” in which they mutilate the horse’s hooves and body to force the horse to walk with exaggerated strides.

Despite activists bringing this heinous practice to the attention of the public, government, and TWHBEA, and despite legislation put into place to prevent soring from happening,the TWHBEA has made little apparent effort to punish members of its organization found guilty of soring. With little threat of consequence from TWHBEA or others, some breeders have continued soring horses up to the present day.

In her article “Trademarking Animal Abuse: Should the Tennessee Walking Horse Breeders’ and Exhibitors’ Association (TWHBEA) lose the TWHBEA trademark portfolio under the Lanham Act for failure to comply with the Horse Protection Act?,” forthcoming in Kentucky Journal of Equine, Agriculture, and Natural Resources Law, Esther Roberts, Chief Executive Officer of Global Intellectual Property Asset Management, explores how trademark law could play a pivotal role in eliminating the practice of soring. In the interview below Roberts shares the details of her article.

Q&A with Esther Roberts

What was your impetus for writing this article?

ER: The first word I ever spoke was “pony.” My impetus for writing this paper grew out of my lifelong love of horses and my disgust at the rampant abuse of the Tennessee Walking Horse, which has gone unchecked for decades. I serve on the Board of Directors of Starlight Farm Animal Sanctuary (SFAS), a 501(c)(3) organization based in Knoxville Tennessee. SFAS has rescued, rehabilitated, and rehomed several walking horses, so I have first-hand knowledge of the abuse these horses endure to produce the artificial and exaggerated gait known in the walking horse industry as the “performance gait” or the “big lick.”

As an IP practitioner, it occurred to me that the governing organization and breed registry for the walking horse breed, the Tennessee Walking Horse Breeders’ and Exhibitors’ Association (TWHBEA) has been condoning illegal abuse of these animals for half a century, yet, despite TWHBEA’s business model being based upon such an illegal “product” - to use trademark parlance - TWHBEA has maintained its trademark portfolio. Like any business, club, or organization, a breed registry’s trademark portfolio is the essence of their “brand.” My instincts told me there might be a way to dismantle the portfolio, so I began conducting research to investigate this theory.

For those unfamiliar, can you briefly explain the practice of “soring” and how it came about?

ER: “Soring” is the term used to describe the abuse inflicted upon gaited horses, particularly the Tennessee Walking Horse breed, to induce elevated and extended movements of the front limbs of the animal and exaggerated, elongated striding of the rear limbs of the animal.

Soring encompasses several steps. First, the soles of any or all four feet are filed down until they are tender, then a series of hard pads called a stack are nailed to the soles of the front feet, and then a pressure band is tightened over each front hoof to further secure the stack. Next, the forelimb skin between the hoof and the knee is coated with caustic chemicals - such as kerosene, diesel fuel, and mustard oil - and the chemically-coated skin is wrapped in plastic wrap so the chemicals “cook” into the skin instead of evaporating. When the horse is being ridden each forelimb is unwrapped and chains are strapped loosely around the chemically burned skin. As the horse walks, the chains strike the raw flesh, causing excruciating pain while at the same time the raw sole of each front hoof is being pounded into the stacks. To try and alleviate this torment, the horse elevates each front hoof and suspends it in the air for as long as possible, while simultaneously stretching its rear hooves as far under it as possible to maintain weight on the rear hooves and keep it off of the front hooves.

Soring is the result of human competitiveness run amok combined with the view that a horse is merely “property.” In the 1950s and 1960s, competitors in walking horse shows desired a “flashier” gait. Initially, heavy horseshoes were nailed onto the front hooves of each show horse to create the “performance” gait that’s sometimes referred to as the “big lick.” Later, a pad was inserted between the hoof sole and the weighted shoe to add even more weight. By the 1960s the desire to win at all costs had evolved into the multi-step process known as soring.

Can you briefly explain the Horse Protection Act of 1970? Has it succeeded in any ways, and what have been the primary challenges to enforcing it?

ER: The Horse Protection Act of 1970 (HPA) is a federal law that was passed by Congress to end the practice of soring. The HPA was enacted in direct response to the increased incidences of soring throughout the 1960s and the refusal of TWHBEA to do anything to stop the abuse. In creating the HPA, Congress noted the practice of soring to be “cruel and inhumane.” The HPA makes it illegal to apply an irritating or blistering agent, internally or externally, to any limb of a horse; to burn, cut, or lacerate any limb of a horse; to inject any tack, nail, screw, or chemical agent into any limb of a horse; or to apply any other substance or device that directly results in suffering, physical pain or distress, inflammation or lameness, unless the device or substance is used in a legitimate therapeutic treatment of the animal and under the supervision of a licensed veterinarian. The HPA provides an enforcement scheme to try and prevent sored horses from participating in horse shows by establishing a pre-show inspection procedure to detect soring.

The HPA has succeeded in reducing the number of sored horses that participate in shows, as horses that do not pass inspection are prohibited from entering the show ring. Whether the HPA has succeeded in reducing the actual number of instances of soring is highly debatable. Some argue the current examination process is too subjective. Some argue those who sore horses have created more subtle ways to inflict pain on the animal to try and circumvent detection of abuse. The HPA’s overall success is severely restricted by its limited budget; from its inception in 1970, through today the HPA’s budget has remained $500,000 a year. Thus for many “minor” walking horse shows no inspections are conducted at all, due to lack of budget.

Also, while the USDA trains and authorizes the inspection and enforcement personnel, often these individuals are inspecting horses belonging to their friends and neighbors, thus there is pressure to “pass” a horse that might be sored. Owners, breeders, and trainers do try to hide soring in some cases.

ER: In 1998, a group of anti-soring walking horse enthusiasts formed the National Walking Horse Association (NWHA) to provide an alternative breed registry and activity organization to TWHBEA. To facilitate registration of TWHBEA-registered horses with the newly formed NWHA registry, NWHA instructed its members to submit an animal’s TWHBEA registration papers when requesting NWHA registration of the same animal so NWHA would have the animal’s ancestry available. NWHA copied both the form and the substance of the animal’s TWHBEA registration document in creating the NWHA document. The TWHBEA sued for copyright infringement, trademark infringement, and various torts. NWHA was found to have willfully infringed TWHBEA’s copyright as to form, but not as to substance; the trademark infringement case was dismissed under the fair use doctrine, and all other claims were dismissed.

The impact of the TWHBEA-NWHA suit has been to further divide walking horse enthusiasts along pro-soring/anti-soring lines. TWHBEA remains the main source for breed registration and lineage papers, thus, if anyone wants to buy, sell, own, or breed a “registered” Tennessee Walking Horse papers issued by TWHBEA are integral to that process. Yet, pro-soring TWHBEA members have created a tight coalition within TWHBEA governance, thus leaving anti-soring TWHBEA members with little hope for change. Throughout the industry soring continues and many industry insiders contend that the performance, or “big lick,” gait is impossible to achieve without soring.

Can Tennessee Walking Horse breeders associations have their trademarks taken away as a result of failure to follow the rules? Do you think this could help prevent further abuse?

ER: I believe it is conceivable that TWHBEA could lose their trademark portfolio under any of three legal theories.

First, TWHBEA is condoning illegal activity - several members of TWHBEA’s Board of Directors have one or more HPA violations - so instead of “self-policing” and revoking the membership of anyone who has been found in violation of the HPA, it appears TWHBEA condones soring. The Lanham Act prohibits registration of trademarks for illegal activities. Second, the doctrine known as “naked license” could be employed to divest TWHBEA of their trademark portfolio. Under this rubric, a licensor who does not maintain sufficient oversight over a licensee’s use of licensor’s trademark(s) may be deemed to have forfeited any right to the trademark. If TWHBEA, due to its unique position as the official breed registry for the Tennessee Walking Horse, is viewed as a licensor giving each license to each TWHBEA member who has at least one TWHBEA-issued registration certificate, then TWHBEA is charged as licensor with conducting sufficient oversight of each license to assure the brand integrity is maintained. One can argue that TWHBEA has failed to maintain any oversight of its brand, both by retaining the membership of any member who is found in violation of HPA and by allowing such violators to hold a position of authority in TWHBEA. Third, anti-soring members of TWHBEA may be able to successfully argue for forfeiture of TWHBEA’s trademark registration under the disparagement analysis utilized by Native Americans to force the Washington Redskins to lose their trademark portfolio.

I believe TWHBEA’s loss of their trademark portfolio could help prevent further abuse of these lovely horses. If the brand were, in essence, dissolved then another breed organization - one that does not condone soring - could take over the registry without concern of an infringement action by TWHBEA. This could level the playing field, so to speak, and eliminate the pro-soring power base that currently dominates TWHBEA.

What do you think is the necessary next step to end the practice of soring?

ER: I believe additional funding and additional federal intervention is required to end the practice of soring. At this time two federal initiatives are actively working to enhance the provisions of the Horse Protection Act. One initiative is a legislative remedy. Senator Kelly Ayotte and Representative Ted Yoho have concurrently introduced legislation entitled the Prevent All Soring Tactics (P.A.S.T.) Act. Currently, P.A.S.T. has 49 co-sponsors in the Senate and 264 co-sponors in the House.

The second initiative is an executive remedy. In 2010, the United States Department of Agriculture (USDA) Office of the Inspector General (OIG) conducted an audit of the HPA inspection and enforcement regimes and found numerous deficiencies. To address these deficiencies, the USDA has proposed a rule that will, in effect, enhance the provisions of the HPA to eliminate the stacks of pads and the chains inherent to the “big lick.” At the present time, the USDA is conducting public listening sessions on the proposed rule.

In addition to these measures, in order to eliminate soring entirely, the pro-soring owners, breeders, trainers, and participants need to see the larger picture and understand that the Tennessee Walking Horse in a natural, un-sored state, is a versatile, popular, marketable breed that is well-suited to many equestrian disciplines.

What impact has public pressure had on challenging the practice of soring in recent years?

ER: Public pressure has had significant impact on the practice of soring in recent years. Those who sore horses are now viewed in the same disparaging way as those who embrace and participate in dog fighting, cock fighting, and other forms of animal abuse. And, in similar fashion, public pressure is shining a light into the darkest corners of the walking horse industry in order to expose this type of animal abuse and make a concentrated effort to stop it.

Outside the remaining few pro-soring counties in Tennessee and Kentucky, there is a global call to end soring.The United States Equestrian Federation - the governing body of most equestrian breeds and activities within the United States, including the Olympic Games, has refused to recognize the Tennessee Walking Horse breed for many years due to the issue of soring.

Once soring is eliminated, it is anticipated that demand for sound, non-sored Tennessee Walking Horses will rise and provide positive economic impact upon breeders and trainers of sound walking horses. Equine venues located in Tennessee should see an increase in horse shows and noncompetitive activities, as right now many equine enthusiasts opt not to invest equine-related dollars in Tennessee due to the stigma regarding soring. More to the point, however, is the fact that every animal that performs the “big lick” has been abused. The abuse is intentional, unconscionable, and severe, and every possible means of ending soring needs to be explored and implemented until this type of abuse is obliterated.