USPTO: The Term 'Redskins' Is Offensive And Can't Be Trademarked
from the paging-Dan-Snyder dept
Months back I and others were questioning whether or not the NFL's Washington Redskins team could trademark their name, given that trademark law includes some fairly explicit language that bans such marks on offensive, racist, or derogatory language. While some folks raised understandable concerns about the flimsy nature of the oft-offended, it was and is my opinion that the United States government should not be in the business of sanctifying rich, white men making gobs of money off of a reference to the skin color of a group of people that same government had nearly obliterated. Crazy, I know, but 'yam what I 'yam.And now, amazingly, we appear to have our answer. And that answer is that you of course can't trademark the term "Redskins" because it's derogatory.
Late last month, the U.S. Patent and Trademark Office denied an application to register a trademark for "Redskins Hog Rinds," a product wholly unrelated to the Washington football team. The USPTO's reasoning for refusing the trademark is simple: It's offensive. From the USPTO decision:
"Registration is refused because the applied-for mark REDSKINS HOG RINDS consists of or includes matter which may disparage or bring into contempt or disrepute persons, institutions, beliefs, or national symbols."As Deadspin notes, this is unrelated to the Washington team, which already has their mark and does not have to go through this same review process, but the point appears to be clear: the USPTO says you can't trademark "Redskins" because of the nature of the word. The timing of this is likely worrisome to Dan Snyder, owner of the Redskins, given that there is a lawsuit brought by a group of Native Americans sitting before the Trademark Trial and Appeal Board, who is sure to point to this application denial as evidence in their claim. Losing the mark wouldn't infringe on Snyder's speech by preventing him from using the word for his team and merchandise. It would simply allow everyone who wanted to use an openly racist term on merchandise to do so, which would almost certainly lead to Snyder changing the name of the team to something less horrific.
So...er...thanks, USPTO?
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Reader Comments
The First Word
“Re: Re: Honestly...
Everything seems to be offensive to somebody.Subscribe: RSS
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Honestly...
Redskins, Chiefs, Blackhawks, etc.
Making the teams change their names is just a headache and a half.
Fuck you, NCAA!
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Bravo.
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Re: Honestly...
The prejudice is ingrained in the minds of a good chunk of the population.
Note: I'm willing to bet a lot of Americans (and possibly others that are influenced) felt the term Jap is offensive towards our Asian brothers and sisters but I will use it nonetheless. It is a way of demonstrating affection to the Japanese and their descendants here where I live so I'll ignore the prejudice within your heads. Which in the end falls squarely with what's being discussed in the article. Is it really being used in an offensive manner?
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Re: Re: Honestly...
How about honky ass whitey cracker
"It is a way of demonstrating affection to the Japanese and their descendants here where I live"
Terms of endearment - isn't that special
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Re: Honestly...
Redskin is a racial slur and is used to demean an entire people. It is offensive, I don't care how long they've had the name or how much of a "headache" it isn.
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Re: Re: Honestly...
Well, that's true, but ends up being besides the point. The Blackhawks are named after a local military armory, not any Native tribe.
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Inaccurate Hyperbole
> States government should not be in the business
> of sanctifying rich, white men making gobs of
> money off of a reference to the skin color of
> a group of people that same government had
> nearly obliterated.
And I pointed out at the time (and will do so here again) that the government's grant of a trademark to a business is not even an endorsement (let alone a 'sanctification'-- seriously?) of that business.
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Re: Inaccurate Hyperbole
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Trademark Loss
> to use an openly racist term on merchandise
> to do so
I don't think it would really hit them very hard at all. They'd only lose their trademark on the word 'Redskins'. They'd still have all their marks on the team's logo and colors, and they could still prevent anyone else from selling those. And since they, too, could also continue to sell 'Redskin' merchandise, the impact would really be minimal.
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Another up-to-minute, ground-breaking, re-write.
And several levels beneath that are frat boys who use their Ivy League statistics course for playing fantasy football, but never have a good word to say about laborers.
"Venture Capitalist" is techno-feudalist for "Born Rich Brat who never had to work a day in their life; they look for poor people with ideas who are desperate for capital, and "venture" a little of present entitlements in greedy hopes of even more leeching off laborers in future.
12:16:53[n-257-8]
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You do know that it originally did contain coke, right?
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No, wait, it's Sugar these days, isn't it?
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Glad that is finally straighten out.
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But, I note, trademarks are still allowed for certain types of trademarks on redskin peanuts, as well as potatoes. I suggest the Redskin Pork Rind company simply use the skin of a particular breed of pig:
http://en.wikipedia.org/wiki/Red_Wattle
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Re:
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http://www.annenbergpublicpolicycenter.org/redskins-question-in-2004-annenberg-study-cited-anew -in-controversy/
Boom.
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http://newspaperrock.bluecorncomics.com/2012/12/annenbergs-redskins-survey.html
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"Losing the mark ... would simply allow everyone who wanted to use an openly racist term on merchandise to do so, which would almost certainly lead to Snyder changing the name of the team to something less horrific."
So by not granting this trademark the USPTO is being a bunch of Indian givers. Wait ... did I just offend someone?
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Maybe "Redneck Hog Rinds" would be more palatable since "rednecks", a pejorative term, as a group appear to have better things to do with their time.
It seems unlikely the decision will be appealed, but the decision is not free from doubt in its interpretation and application of 15 USC 1052(a).
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If yes you should demand your money back.
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Words that have become offensive
http://www.huffingtonpost.com/2014/01/09/juror-form-negro_n_4556506.html
So how much longer until the United Negro College loses its trademark? I would very much like to start my own fund with that name. Of course I would only do it so that the original organization with that name would change theirs. Which according to you is the reason offensive names should be stripped or not gain protection in the first place. It would have nothing to do with me wanting to make a profit.
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Re: Words that have become offensive
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Did they forget....
They Lost.....so piss off.
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I'm offended by the term "Microsoft"
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Well, as long as government is enforcing GOOD speech.....
And TechDirt applauds this?
I find it offensive when people (the freedom-loving denizens of TechDirt for instance) who (rightly) find so much government action objectionable, and who so frequently (and rightly) worry about the growth of government power, are perfectly fine with the use of such power when it fits their own preferences, prejudices, or favorite means of generating smug superiority. Sounds like a case of believing in freedom...for people to do or say things of which you approve. Nice.
But hey, that's just moral inconsistency, or maybe hypocrisy. The worst aspect of having the government in the business of deciding what people are allowed to say is the SUBJECTIVE NATURE OF THE SO-CALLED VIOLATION.
The law should never be based on subjective, unverifiable claims. The law should be based on reality and fact, not someone's feelings. Especially, the government should never be in a position to enforce laws dictating what is acceptable opinion, emotion, or state-of-mind. EVEN. IF. YOU. AGREE. WITH. THEM.
I won't invoke Slippery Slope here, but whoever applauds this, seeing no downside, is dancing on Teflon Mountain wearing butter boots.
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Re: Well, as long as government is enforcing GOOD speech.....
(And the "slippery slope" isn't a fallacy because its invocation is wrong--the problem with the argument is that you can't know exactly *where* the slope bottoms out but, based on precedent, we know damn well that every time speech is controlled by those who think they know better (see: every single despotic regime in human history, from ancient empires where criticizing the emperor was grounds for execution to Nazi Germany), it ends *badly*.)
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Re: Well, as long as government is enforcing GOOD speech.....
What can we do about it?
Be kinder and more respectful to each other so the idiots on both sides become fewer in number till they finally shut up. Hell, we can all dream, can't we?
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Re: Well, as long as government is enforcing GOOD speech.....
> denizens of TechDirt for instance) who (rightly) find so
> much government action objectionable, and who so
> frequently (and rightly) worry about the growth of
> government power, are perfectly fine with the use of
> such power when it fits their own preferences, prejudices,
> or favorite means of generating smug superiority.
Yep. This site has taken an admirable stand over the years against the use of IP to law as a tool for silencing speech because it's unpopular or disliked, yet on this one issue, suddenly it becomes perfectly fine to use IP law to silence speech that at least one of the main authors here doesn't like.
It's a particularly glaring bit of hypocrisy.
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Re: Re: Well, as long as government is enforcing GOOD speech.....
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Re: Re: Re: Well, as long as government is enforcing GOOD speech.....
They either have to alter their speech or handicap themselves by going without the economic protections that their competitors enjoy. And this precedent, of course, can cause others to refrain from 'speaking' the way they might otherwise choose to, resulting in a chilling effect.
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Re: Re: Re: Re: Well, as long as government is enforcing GOOD speech.....
So, just so I'm clear, you look at the USPTO refusing to limit the speech of the greater population in commerce and label that a limitation of speech. Interesting version of reality you have there....
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Re: Re: Re: Re: Re: Well, as long as government is enforcing GOOD speech.....
Yet that's exactly what you're advocating here. The purpose of trademark law is to prevent consumer confusion as to the origin of a product in commerce. That's it. It's purpose is not to confer a government endorsement or 'sanctification' (your words) of the business that receives the trademark. Nor is it the purpose of trademark law for the government to prevent people from being offended by a business's name. Based on every other position you guys take on the issues surrounding IP law, I honestly can't believe you'd be in favor of giving the government that power, but apparently you, at least, are.
That's fine. It's your opinion and you're entitled to it, but don't pretend it doesn't fly in the face of the stance you and this site have taken on the issue of IP law abuse in the past. Apparently IP law abuse is fine when you're heart's in the right place and your intentions are pure. Or something like that.
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Re: Re: Re: Re: Re: Re: Well, as long as government is enforcing GOOD speech.....
Well, that's simply not true. I won't speak for the Maz, but I've never been dogmatic about how IP is used. My only concern was that it server its GENERAL purpose of promoting the progress, which, interestingly, DENYING trademarks can do, as in this case, where more people would be able to use more speech in more commerce. Yet you have a problem with it, because you seem to think that this is outside of trademark's scope, despite the fact that denying degrading language is baked into the law. It's, honestly, a very strange position to take for anyone that isn't emotionally tied to the team name....
"Yet that's exactly what you're advocating here."
Mmmm, no. It's not an inappropriate use at all, it's baked directly into the law. This isn't some new end-around, it's been around forever.
http://en.wikipedia.org/wiki/Disparagement
"It's purpose is not to confer a government endorsement or 'sanctification' (your words) of the business that receives the trademark."
Nobody said that was its "purpose", it's just the de facto nature of a govt. granted privilege. Similarly, the purpose of diplomatic relations isn't to end up with an emissary in a foreign country in an embassy that must be guarded and protected....that's just the nature of the position. Your point is literally not saying anything.
"Nor is it the purpose of trademark law for the government to prevent people from being offended by a business's name."
You seem to think this has to do with people being offended. It doesn't. Words can be disparaging by their very nature without any need for validation by the target. If I don't care enough for a homosexual man sitting next to me to call him a cocksucking faggot, his laughing it off doesn't make my words NOT disparaging. The issue is the nature and history of the word, not how many people are offended. The term Redskin OBVIOUSLY is a disparaging term, as has been cited in previous articles.
"Based on every other position you guys take on the issues surrounding IP law, I honestly can't believe you'd be in favor of giving the government that power, but apparently you, at least, are."
Again, the govt. is taking an action that actually allows for more speech by more people in more commerce, not less. That would seem to be entirely consistent with what we discuss here. I think you may have some blinders on preventing you from seeing this....
"Apparently IP law abuse is fine when you're heart's in the right place and your intentions are pure. Or something like that."
You keep repeating that this is abuse, but you haven't bothered to explain what the balls you're talking about. Disparagement is written into Trademark law. The USPTO just showed how it's supposed to have been done. What "abuse"? Was the USPTO wrong for denying this mark? Do you not think disparagement clauses exist? Do you somehow think that the term Redskin is not a disparaging term?
http://en.wikipedia.org/wiki/Redskin_(slang)
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And I'm the dumbass? Outstanding work there....
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Re: Re: Re: Re: Re: Re: Re: Well, as long as government is enforcing GOOD speech.....
> baked directly into the law. This isn't some new
> end-around, it's been around forever.
Lots of things are 'in the law' that are regularly criticized on this site as being inappropriate and outside the purpose of IP law. How many articles have we had criticizing aspects of the DMCA here on TechDirt? Things like the anti-circumvention clause are 'baked directly into' that law and have been around forever, too. Doesn't mean it's an appropriate use of IP law and this site regularly points it out. So telling me "Well, it's in the law, so it must be cool" is a bit of a non-starter. I've never suggested that there isn't a clause in the trademark statute (probably added by some 'progressive' member of Congress as an amendment in exchange for favors) that allows the USPTO to make these silly rulings. I'm contending, much like TechDirt has done with the DMCA's anti-circumvention clause, that's it's not appropriate for the government to be using IP law in this manner, legal or not.
> Nobody said that was its "purpose", it's just the de facto
> nature of a govt. granted privilege.
No, the grant of a trademark by the government to a business is not equivalent to a sanctification or endorsement of that business, no matter how many times you claim it is. Just like granting a liquor license doesn't mean the government is endorsing Hooters. Or granting a business license doesn't mean the government is sanctifying an adult book store.
> The term Redskin OBVIOUSLY is a disparaging term, as
> has been cited in previous articles.
Whether it is or is not disparaging is not the issue and not an argument I'm making one way or the other. My contention is that it's none of the government's business, nor is it the appropriate role of government to be regulating such things. If the name of a business is offensive and disparaging, then the market will dictate the success or failure of that business.
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Re: Re: Re: Re: Re: Re: Re: Well, as long as government is enforcing GOOD speech.....
No, that is not its nature. The government grants me the copyright on this post of mine. It also grants you a copyright on YOUR post. By your logic, the government is endorsing both of our posts, even though they are opposed. (And this would not change if we had to register the copyright - neither copyright would be denied registration, or at least not because of the views expressed.)
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My thoughts
Horrific? I don't know, it takes a little more than that to inspire horror in me.
In summary, you want the government to take an action, and you want them to do so solely because you think it would affect a particular person's speech.
Imagine if the Pirate Party was denied exclusive use of their name because it contained the word "pirate". You'd be the first one to explain exactly why the government's actions in that case would be infringing on their rights - and all the arguments you'd make there would apply here.
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Re: My thoughts
Maybe Timothy here should work for the government himself instead of 'contributing' to a site that usually looks out for the freedom of individuals. I mean, somebody so certain of their own superiority really ought to be ruling...errr...'serving' the public, right?
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I'm going to assume that this rejection is based on the term and not a logo or anything.
This case is kind of weird because of the product involved. Pork rinds literally ARE skin. If they're tinged red, this name makes sense. Of course, you also can't trademark a name that's merely descriptive of the product.
Frankly, I see no reason why the law should prevent a trademark from being granted on a disparaging name. Especially if it's the case that even if the trademark is denied, you cannot stop them from selling a product with that name. (I'm sure you could think of product names that you could not use even if you used them without trademarks - for example, "John Doe Is A Murderer" brand T-shirts would be libelous if he wasn't one, "Official Government" brand tax advisers would be shut down as fraudulent, and "The NSA Demands We Turn Over All Your Phone Records" brand T-shirts from AT&T would have violated the secrecy order back when it was still a secret - but how often do those come up?) In any realistic case, the only thing you can do by denying the trademark is stop them from selling it exclusively - which means you are arguing for the legal right of *everyone* to use that name in their products. It just doesn't seem like that's the right way to go. Not to mention the problems with some government bureaucrat deciding what is or is not offensive.
Not to mention, the real purpose of trademark is not just to protect the companies - it's to prevent *consumer* confusion. It does not help the consumer to lose that protection because the government doesn't like the product name of what they choose to buy.
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And from what I see and hear of the American public, I would think that they find the term "hog" more offensive.
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hog rinds
I agree entirely with the USPTO - the term "hog rinds" is offensive. As a long time supporter of boar rights, I think it's high time that we banished the racist term hog which has many negative connotations, as does the equally offensive word pig.
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redskin=genocide?
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Jesus Christ people are sensitive these days.
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No complaints about Vikings yet?
I'm sure Viking was not always used as a compliment either, considering their frequent raping and pillaging of European coastal villages but I don't hear any Danish people complaining about it.
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Re: Festive collection of Flowers for Brazil
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http://www.annenbergpublicpolicycenter.org/redskins-question-in-2004-annenberg-study-cited-anew -in-controversy/
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http://en.wikipedia.org/wiki/Washington_Redskins_name_controversy#Public_opinion_polls
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Just name the team for something to do with the city
But as I said before in a similar thread, this whole issue could be avoided by naming the team after something that relates to Washington, like the Capitals (hockey) or Senators (baseball). I think the team should be called the Washington Presidents. Their logo could be a headshot of George Washington for home games and a headshot of Lincoln for away games.
Then again, going by what some of the other posters are saying, I'm sure there would be some people who would be offended by a sports team using our great leaders for such a crass purpose as a team logo.
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redskins name
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Report button missing
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Re:
http://www.npr.org/blogs/codeswitch/2013/09/09/220654611/are-you-ready-for-some-controvers y-the-history-of-redskin
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An excellent question, especially since, according to your link:
The
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This leaves me confused. How can "removing" a word allow for more speech? Are others now able to wax poetic using the "word" that you deem offensive?
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Ok, try to follow with me now: they....are....not....removing...the...word. They aren't preventing the Washington team from retaining their name, they aren't preventing them from using it in commerce, they aren't preventing anyone from saying that word. At all.
All removing the trademark would do is allow EVERYONE to use the word in commerce. Currently, only the Washington team can do so in their market. Removing the mark would allow for more speech, not less.
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Yes, that's the direct effect. But the only reason you want that effect is that you think it will get them to stop using the word. I know you're familiar with the idea of a chilling effect.
Their use of the word is speech. The speech may have almost no value and may be offensive, but it's still speech, and I object to a group using the power of the government to try to get them to change it.
And... I don't know, maybe I just have a hard time seeing the use of single words as highly offensive to large groups. Maybe I don't like the idea that we must throw away a word forever because it was a negative term at some point. Maybe I don't like that they're objecting to a term that you won't even SEE outside of sports teams. Maybe I don't like that "Dykes On Bikes" can get a registered trademark because it's somehow OK if it's members of that group that use the term, even if some of the other members still find it offensive. Maybe I don't like that as a group they waited like 40 years before objecting.
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"Redskin is an offensive name, lets remove the trademark so everyone can use it."
Stick to humour. Or is this parody that we all missed?
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