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….
“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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