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“Redskins” trademark cancelled by USPTO as “disparaging” — Are “Negro” and “Colored” next?

“Redskins” trademark cancelled by USPTO as “disparaging” — Are “Negro” and “Colored” next?

So when do challenges to United Negro College Fund and NAACP trademarks start?

http://youtu.be/-DN2CLQTHuY

From WaPo:

The United States Patent and Trademark Office has canceled the Washington Redskins trademark registration, calling the football team’s name “disparaging to Native Americans.”

The landmark case, which appeared before the Trademark Trial and Appeal Board, was filed on behalf of five Native Americans. It was the second time such a case was filed.

“This victory was a long time coming and reflects the hard work of many attorneys at our firm,” said lead attorney Jesse Witten, of Drinker Biddle & Reath.

Federal trademark law does not permit registration of trademarks that “may disparage” individuals or groups or “bring them into contempt or disrepute.” The ruling pertains to six different trademarks associated with the team, each containing the word “Redskin.”

I’m not familiar enough with trademark law to say just how far of an outlier this is, but many people now consider the phrase “Negro” and “Colored” to be disparaging. Just as at one time “Redskins” was not disparaging, so too times have changed and calling someone “Negro” or “Colored” could be deemed disparaging.

So does that mean the United Negro College Fund and National Association for the Advancement of Colored People should have their trademarks revoked?

Update: Euguene Volokh points to this paragaraph from the opinion:

[T]hese registrations must be cancelled because they were disparaging to Native Americans at the respective times they were registered, in violation of Section 2(a) of the Trademark Act of 1946, 15 U.S.C. § 1052(a) [which bars, in relevant part, registrations of marks that “may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute”]. This decision concerns only the statutory right to registration under Section 2(a). We lack statutory authority to issue rulings concerning the right to use trademarks.

While the test might be what was disparaging at the time, I find it hard to see how one can divorce current political and societal views from the hindsight analysis. Volokh adds:

Follow the last link and scroll down to page 81 for the dissent, which argues that the historical evidence is simply too equivocal to find that “Redskins” was disparaging when the mark was first granted….

Allahpundit writes:

“Disparagement” is interesting grounds for canceling a mark. After all, in theory, the market should be able to handle the problem. If Snyder changed the team’s name to, say, the “Washington Blackskins,” the economic backlash would be sufficiently swift and stern that you wouldn’t need the USPTO to convince him to change his mind. Empowering the agency to cancel a mark is sort of the intellectual property equivalent of civil rights legislation: It lets the government step in and sanction a business on behalf of people who may not have enough political or economic clout to force the change otherwise. Is that true of Native Americans, though, given the number of Senate Democrats who are now invested in this issue? Is it also true that the term “Redskins” brings Native Americans “into contempt or disrepute”?

Was the USPTO majority not aware of the current political controversy? Hard to believe that if they truly stepped back in time to the moment of issuance, and ignored current reality, that they would have come to the same conclusion.

[Note: The quote from Allahpundit was misattributed to Volokh, and now has been corrected thanks to the good catch from Tom Maguire.]

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Comments

mumzieistired | June 18, 2014 at 10:41 am

Yes. But only if we’re going to be consistent.

I’m not an attorney, so am not familiar enough with law to know how irregular this is. But it sure seems a lot like changing the rules of the game after it’s already started.

OMF’ing G !

More ‘implement social targets by executive or regulatory action’

Can the Redskins sue ? Is there any recourse for them ? I mean, without changing their name to suit the left wing liberal hyper-sensitive nutbags that rule this country today ?

Uh, where is that due process thingy we keep hearing about? And what about that just compensation thingy?

For that matter, where in the constitution is this right to be offended thingy? Next to the penumbras and emanations thingy?

Excuse me but I have to go get a mop and bucket to clean up my barf.

Not A Member of Any Organized Political | June 18, 2014 at 10:54 am

They are also pushing to “cancel” the use of Red, Yellow, Brown, Black, Purple, Pink, but not “White.”

Boy, Crayola is gonna be P.O.ed!!!

Snark Snark!

Federal trademark law does not permit registration of trademarks that “may disparage” individuals or groups or “bring them into contempt or disrepute.”
———————————————–

SOkay…

The Southern Poverty Law Center goes on the list.

That name “may disparage” all individuals who live in the South, implying as it does that poverty is unique to the region and is somehow endemic.

LOTS of us can play this game when there are no laws, but only men.

In practice, this should have very little effect. They DO still own and can enforce their trademark as a common law trademark. Also, since it formally cannot be registered now, they don’t have to be registered first in order to prevent someone else from coopting their trademark by registering it.

They also can appeal this action by the board to a court on the issue of whether it in fact “disparages” anyone. (How ridiculous.)

(Note the tweet also is misleading in that a “trademark” is not a “patent”.)

    sequester in reply to janitor. | June 18, 2014 at 1:18 pm

    Many states such as Florida (§495.001 et seq Fla. Stat.) have their own trademark laws. Presumably, the name Redskins can be protected under those laws and similar state laws.

    I also presume the team logo, shown on the helmet in the picture above would be unaffected by this decision?

The Potomacs were a tribe. Or they can change the river’s name to Redskin.

ban democrat trademarks then.

There are a few people with the last name “Redskin” in the United States. They just got officially insulted.

The concept of Freedom of Speech means, among other things, that the Federal govt. doesn’t get to decide what speech is “disparaging”, and can’t punish the person (or in this case the corporation) using it. Denial of equal protection would seem to be punishment.

And then there is the diversity of Notre Dame with a bunch of 6’8″ black guys running back and forth on a basketball court wearing shirts that read “Irish”.

The team could be called the “Redskin” potatoes.

I don’t think any of the thin skinned spuds will be disparaged in the process. And, just think of the team mascot – Spud Mashup!

Team song – Eye of the Potatoe!

I approve of this decision on behalf of barely-Indians everywhere. We who are only marginally members of the Micmac tribe of northern Maine (among other tribes) are extremely marginally offended by the use of the term “redskins” for anything other than potato salad, which we dearly love. Please change your team’s name to the “Washington Lobbyists”. We know where the real power in Washington is.

I find the term “Cracker” disparaging, therefore I want the trademarks for Ritz Crackers, Soda, Saltine, etc., revoked.

MaggotAtBroadAndWall | June 18, 2014 at 11:57 am

They’ve been called the Washington Redskins since 1933. A 2004 poll asked 768 Native Americans in every state except Alaska and Hawaii this question:

“The professional football team in Washington calls itself the Washington Redskins. As a Native American, do you find that name offensive or doesn’t it bother you?”

90% said it does not bother them.

http://www.annenbergpublicpolicycenter.org/most-indians-say-name-of-washington-redskins-is-acceptable-while-9-percent-call-it-offensive/

It may technically be true that five Native Americans brought the case, but there is just no way a bunch of over-educated white progressives are not behind it. It’s their world now: socialized healthcare, gay marriage, using government coercion to restrict carbon dioxide emissions; and now the important matter of pressuring a football team to change the name its had for 81 years.

The fundamental transformation keeps chugging along.

” … “disparaging to Native Americans” … filed on behalf of five Native Americans.”

?

How about changing that to “disparaging to FIVE Native Americans”?

Since when do 5 people speak for 5.2 million people who claim to be all or part Native Indian in the US?

Were any of the 5 ‘Liz Warren’ type Indians?

As for “Native Americans”, I suspect most readers on this blog are native Americans, having been born and raised and living in the US. Count me one native American who does not object to the term “Redskin” any more than I object to the term “white bread” and “cracker”, et al.

There are 2 critical issues the low-info crowd,especially the sports crowd, are missing

1) This amounts to the confiscation of private property.

2)Offensive/disparaging speech is as subjective as you can get, leaving the standard of “how someone feels that day”.

Further, word banning is a step beyond book burning, and just short of thought banning.

So, now we spend the next 3 days arguing with other about the name Redskins, and racism.

Yet another example of how Obama spends every waking day dividing America; most Americans too busy arguing with each other, sewing seeds of hate against one another, to even notice.

(And no, I don’t buy for a split second Obama isn’t behind this.)

Juba Doobai! | June 18, 2014 at 12:58 pm

What about the Cleveland Indians?

    DINORightMarie in reply to Juba Doobai!. | June 18, 2014 at 1:40 pm

    …..or the New England Patriots (they should have already been marked as a “right wing hate” name, dontcha know), or the Cleveland Browns (a subtle jab at all brown-skinned people everywhere), or the Pittsburgh Pirates (the Somalis might be offended!), or the Chicago Bears (the Russians might be offended!)………….

    ……and on and on it goes.

    It’s theft. It’s tyranny. And the Redskins are going to appeal, thank the Lord!

      Browndog in reply to DINORightMarie. | June 18, 2014 at 1:54 pm

      Many don’t care about the Redskins because it’s not “their team”. Patriots are my team, and know full well they are “un-American”, and enemies of the State; which, I think, is more ‘criminal’ than just offensive.

      -Yankees
      -Vikings
      -Raiders
      -Dodgers (not sure what they’re dodging, but sure sounds like it might be ‘paying their fare share’

      The list is endless.

      Then again, these are the same people that find the American Flag and Christians offensive.

I get the redskin thing. What the Washington Football Organization (WFO) should do is approach the Potomac Indians and ask how WFO can in an ethnically/culturally correct way represent Potomac warriors as the organization’s mascot. WFO will also give the Potomacs a cut of the sports apparel monies OR better yet give them a percentage of the team.

    Browndog in reply to Hurricane. | June 18, 2014 at 1:18 pm

    Yea, bend over backwards to appease the liberals. That’ll work.

    Since you want to go full libtard, how about we ban all maskots/nicknames, and replace them with non-offensive numbers-

    Then, you can give the moslems a cut of each team since they “invented” math.

    pjm in reply to Hurricane. | June 18, 2014 at 3:04 pm

    Oh, just the one local tribe ?

I hear New Delhi is sending some Gurkhas to take care of that.

Just my layman take on all this. I agree revoking the *trademark* is outrageous. But the larger issue is that there should be no reason for the Redskins to be forced to change their name. If the name is not able to remain trademarked it doesn’t mean the redskins are banned from the name, the term “Washington Redskins” would be in the public domain, which simply means no one can claim an exclusivity on it, but could still use the name.

In practical terms the Washington Redskins still have copyright on their team logo, so they could still enforce their *art** which is subject to copyright law. So people can’t just pirate or “knock-off” their jerseys and team memorabilia. Unless I printed some t-shirts with just plain text “Washington Redskins” they can still enforce others from copyright stealing. Of course if I put “Washington Redskins” in plain text on the t-shirt it may have little if any market value.

Even if a team joined the NFL and used the same name it would be absurd to think a group would do that or if the NFL allowed that as a private organization. I think the trademark loss is not a real game changer.

But if Microsoft lost their trademark I could market things like software using their name (but no copyright artworks) and perhaps could cause enough consumer confusion to be an economic problem for them. The difference being that Microsoft is making more tangible products whereas the Redskins product outside of team memorabilia is not a tangible product, it is entertainment that is their real product.

I would like to hear some of the legal experts here weigh in on this.

    janitor in reply to mgparrish. | June 18, 2014 at 2:00 pm

    They still own and can enforce their trademark. It’s just not “registered”, which has misc. registration benefits.

    Browndog in reply to mgparrish. | June 18, 2014 at 2:00 pm

    Property is property and no one has the right to decide which is more valuable, and to whom.

    Personally I hold the NFL franchise Redskins more valuable than the anti-commerce destructive monopoly that is Microsoft.

    Deciders….

Oh boy…. for how much longer will blackmail be a crime. It offends 1)African Americans and 2) people who don’t know the difference in spelling between male and mail.

The Koalition For The Speling And Usag Chalenged is not to be truffled with.

Can you say….”Fundamental transformation of the country”

tarheelkate | June 18, 2014 at 5:21 pm

I find it hard to understand how the USPTO can think that the name was “disparaging” when it was chosen, or is now. The connotation was surely something like “fierce warriors,” which in a sports context is a positive, not a negative.

Humphrey's Executor | June 18, 2014 at 7:06 pm

Rename the team the “Washington Patent Office Weasels.”

canoworms27 | June 19, 2014 at 7:30 am

As I have given this a lot of thought…there is no native anything, the American Indian came from somewhere…presumably the Asian continent via the Bering straits(Clovis people). If anything we could say all peoples are native earthlings and nothing more.

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