"Redskins" ruled disparaging
« previous post | next post »
Ken Belson, "U.S. Patent Office Cancels Redskins Trademark Registration", NYT 6/18/2014:
The Trademark Trial and Appeal Board, part of the United States Patent and Trademark Office, canceled the trademark registration of the name Redskins for use in connection with a professional football team, saying that “a substantial composite of Native Americans found the term Redskins to be disparaging.”
Some previous LLOG posts:
"Fenimore Cooper, call your office", 10/7/2003
"The conventions for expressive content words", 10/11/2003
"Of limes and racial epithets", 1/18/2004
"Mascot names and etymology", 5/25/2004
"Disparaging trademarks and the lexicography of tools", 7/16/2005
"Adverbial license", 7/17/2005
"The origin of redskin", 3/26/2006
"When should linguists disclose a conflict?", 12/15/2009
"The Slants vs. the USPTO", 8/21/2013
J. W. Brewer said,
June 18, 2014 @ 11:41 am
http://e-foia.uspto.gov/Foia/ReterivePdf?system=TTABIS&flNm=85584271-05-30-2014 will hopefully work as a link to another recent TTAB decision on taboo words, holding that the trademark ASSHOLE REPELLENT was not eligible for federal registration due to being "scandalous and immoral."
J. W. Brewer said,
June 18, 2014 @ 12:10 pm
http://www.scribd.com/doc/230252016/U-S-Patent-And-Trademark-Office-s-Redskins-Ruling is a link to the REDSKINS ruling (2-1, with a dissent). Unless I missed it, the NYT story did not provide a link, which seems unfortunate in terms of best practices for online journalism in 2014. Note that the legal test apparently being used is a bit technical and might be counterintuitive to non-specialists – i.e. not whether REDSKINS in this context is considered widely disparaging by the general U.S. population today, but whether it was so considered by a "substantial composite" (which apparently means potentially less than a majority, fwiw) of members of the referenced group (i.e. American Indians) as of the historical time period when the various trademark registrations were issued, which runs from 1967 to 1990. From a quick skim, it seemed that no one had very good direct evidence on that issue (i.e. reliably conducted opinion surveys of a valid cross-section the population group in question), and whether the indirect evidence that exists was sufficiently persuasive is a question that divided the panel. (The dissenter, fwiw, was careful not to make an affirmative claim that the term was *not* widely viewed as disparaging by the relevant group in the relevant time period, only that the evidentiary record was insufficient to prove the claim that it was.)
Jon Weinberg said,
June 18, 2014 @ 12:29 pm
It's also worth noting that — even if upheld on appeal — this ruling does not take away all of the team's trademark-law rights in the REDSKINS mark. The team likely can continue to enforce those rights without the federal registration, albeit somewhat less conveniently. See http://www.uspto.gov/news/USPTO_Official_Fact_Sheet_on_TTAB_decision_in_Blackhorse_v_Pro_Football_Inc.pdf
rootlesscosmo said,
June 18, 2014 @ 12:41 pm
"Composite"?
J. W. Brewer said,
June 18, 2014 @ 1:06 pm
rootlesscosmo, yeah that's not a term of art that immediately rang a bell with me (and once upon a time I intended to specialize in trademark law, although my actual legal career ended up taking a different path), but it's apparently well-established in contexts like this, e.g. (from a 1981 appellate decision) "Whether or not the mark, including innuendo, is scandalous is to be ascertained from the standpoint of not necessarily a majority, but a substantial composite of the general public."
J. W. Brewer said,
June 18, 2014 @ 3:09 pm
Note also that if the team maintains the name (not viewing this development as a big deal) but can't get this decision reversed in further litigation and the difference between having federal registration and merely common-law trademark rights makes it harder for them to e.g. shut down purveyors of unauthorized/unlicensed Redskins t-shirts and the like, one would predict from basic economics an increase rather than a decrease in the amount of stuff out there in the world the petitioners find offensive. Not only does loss of registration not mean the current team owners can't continue to use the mark, it means (for federal statutory purposes only, which is an important caveat) anyone else can use it without their permission. Whether the petitioners are assuming (for all I know correctly) that this will be a death blow because it's control over licensing revenue from t-shirt sales rather than winning football games that's key to the economics of the business, or were instead pursuing an essentially symbolic victory for essentially symbolic reasons is not clear to me.
AntC said,
June 18, 2014 @ 5:34 pm
@rootlesscosmo, yes composite worried me far more than Redskins. Thank you JWB for the citation.
In NZ we have similar issues re Maori cultural property (for example re the haka used by our national Rugby team, or the koru emblem of our national airline). But I guess these are viewed as positives, rather than insulting.
Whatever, the idea of getting a finding from a composite of Maori is laughable. They won't even come to an agreement about representations from each tribe in the reparations [talks about talks about Treaty Settlement] negotiations.
Bloix said,
June 18, 2014 @ 9:41 pm
This decision is a replay of a 1999 decision from the same board, on the same grounds. The team owner appealed the decision to the federal district court, which reversed. Then the plaintiffs appealed to the appellate court, which decided – on a ridiculous technicality – that the whole case had to be thrown out.
So the plaintiffs – actually, different individual plaintiffs, but the same team of lawyers – started again before the board, and here we are, 15 years later, with the same result. The case will now go back to the federal district court, which may well reverse again, and then to the same court of appeals, which won't be able to toss the case on the same technicality and will have to decide the issue.
Ginger Yellow said,
June 19, 2014 @ 9:12 am
This decision is a replay of a 1999 decision from the same board, on the same grounds.
It's not quite the same grounds. The earlier case involved a claim that the various marks were scandalous to the general public, not just a substantial composite of the referenced group.
Grunschev said,
June 19, 2014 @ 12:08 pm
One of the funniest thing about this controversy is that there’s a high school on the Navajo reservation in Arizona: Red Mesa High School. They call themselves the Redskins. I’d have a lot more sympathy for those who say the name is derogatory if this high school quit calling themselves the Redskins.
John said,
June 19, 2014 @ 3:32 pm
Really? I think there's a huge difference in what might be derogatory between name usage in-group for a local high school team, without legal force of trademark, versus out-of-group for a nationally prominent professional team profiting through legal trademark. Context matters– maybe not for the legal arguments involved, but certainly in terms of who might find what terms derogatory.
J. W. Brewer said,
June 19, 2014 @ 4:22 pm
I'm not sure the legal test the TTAB employed was optimal (not least in terms of its sensitivity to context), but it may well be that that's the fault of Congress or the appellate courts rather than their own — their job is to do the best they can applying rules devised by others to the evidence in particular disputes before them, and the panel dealing with the objections to the REDSKINS marks split 2-1 as to how to do that. Here's the thing: there are words that virtually everyone will accept are taboo/offensive and then at the other end of the spectrum there are words that only a view fringe activists get uptight about and think ought to be taboo. Then there are ones in the middle, where different people have different judgments about whether they are or should be taboo (or whether only mildly or strongly taboo, which is sort of a separate dimension of the question). What you do in what context with a word that falls in that sort of middle ground is a genuinely difficult question. "Not let it be used in a federally-registered trademark if a substantial-even-if-not-majority portion of some relevant population don't like it" is not an inherently unreasonable answer to one specific such question, but it's not the only potential answer. To go back to my comment at the top of the thread, different people in the U.S. these days probably have considerably different attitudes about just how taboo a word "asshole" is, but it's still as of 2014 taboo enough that (subject to appeal) the TTAB thinks you can't use it in a federally registered trademark.
Whether refusal of the benefits of federal trademark registration on this sort of ground raises First Amendment concerns is apparently (I learn via a facebook friend who is an academic in the relevant subfield) a question that has been raised speculatively in some scholarly writing, but not yet afaik engaged with by the courts.
Grunschev said,
June 20, 2014 @ 10:14 am
"I think there's a huge difference in what might be derogatory between name usage in-group for a local high school team, without legal force of trademark, versus out-of-group for a nationally prominent professional team profiting through legal trademark. Context matters– maybe not for the legal arguments involved, but certainly in terms of who might find what terms derogatory."
Your position would seem to support a high school in a predominantly black area calling themselves something like the Jefferson High School Niggas. I must be missing some nuance.
J. W. Brewer said,
June 20, 2014 @ 11:02 am
A semi-parallel example from the world of professional sports might be the not-very-controversial name of the Vancouver Canucks in the NHL. In Western Canada, Canuck is apparently not considered derogatory as either an in-group or out-group usage, but at least historically it was considered derogatory in other parts of the continent (e.g. in New England when used as an out-group usage by members of the local ethnic majority to refer to immigrants of Quebecois ethnicity — there was a minor political scandal during the 1972 New Hampshire primary when presidential candidate Edmund Muskie was falsely claimed to have used the word). The Quebecois-American community may not be all that politically salient or activism-oriented these days, of course.
quixote said,
June 20, 2014 @ 3:38 pm
Grunschev, the nuance you're missing is that between laughing at yourself and laughing at somebody else.
Miguel DeMoravia said,
June 23, 2014 @ 1:55 pm
Not Washington-related, but still sports-related:
http://www.espnfc.com/blog/men-in-blazers/95/post/1904962/us-very-much-alive-in-the-world-cup
That article is terrible! America's team are alive??? Sheesh…
Bob Spence said,
July 2, 2014 @ 6:20 pm
The team could resolve all this by simply changing their mascot to a peanut