USPTO: Again, Redskin Can't Be Trademarked Because It's A Racist Term
from the no-kidding dept
In the ongoing maelstrom known as the controversy surrounding the Washington Redskins NFL team name, we've covered before how the trademark they've obtained may soon be under siege. Trademark law has a provision that prohibits marks on disparaging and/or racist terminology, of which the term "redskin" is most assuredly included. This provision is a huge pain in the ass of Daniel Snyder, owner of the Redskins, who, on one hand, insists the team retain their racist name while on the other hand throws around accusations of antisemetism willy-nilly. Building on that worry is the recent case of the USPTO coming out and rejecting another trademark attempt on the word "Redskin" for those very reasons.
Well, unfortunately for Snyder, that case isn't a lone example. The USPTO has rejected another such trademark, this for "Washington Redskins Potatoes", in part of the same reason.
"Registration is refused because the applied-for mark includes matter which may disparage or bring into contempt or disrepute persons, institutions, beliefs, or national symbols," the decision, handed down on March 17, says. It concludes: "Given that "REDSKIN" in the mark is a derogatory slang term that refers to, and is considered offensive by, American Indians, registration of the applied-for mark must be refused" under the Trademark Act, a 1946 law that prohibits the trademarking of offensive or derogatory terms. The examining attorney's decision cites dictionary definitions of the word "Redskins" that say it is "usually offensive" or "offensive slang," and it also notes that groups like the National Congress of American Indians and the Oneida Indian Nation regard the word as a disparaging slur.Now, I know all you staunch libertarians out there are going to get your boxers in a twist over this, issuing all the same proclamations about how it isn't your responsibility to not offend people, how this is an infringement of speech, or how this is a sign of our increasingly politically correct society. Look, I get you. A large portion of the time on this type of question, I agree with you. But in this case, the law is pretty clear, as is the accepted definition of the term "redskin." And if the NFL team's mark was removed, it wouldn't mean Snyder had to change the name of the team, it would just mean that anyone else, were they so inclined, would be able to use the term in football commerce at that point (although, not the logo, or other trademarked identifiers for the team). The point, as it has been since day one, is that the United States government should not be in the business of sanctifying racist language via grants of trademarks.
It should be noted that the offensiveness of the term was only partly to blame for the denial of the mark. The USPTO also thought there might be some confusion between the team's existing mark and the potatoes (which might not be entirely crazy given the combination of both "washington" and "redskin" for the potato).
Meanwhile, the appeal on the NFL Redskins mark has been heard, and we're all just awaiting their ruling. If the USPTO is anything to go by, Snyder may want to look for a new name -- or at least recognize that the name won't be trademarked any more.
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Yes, and in the case of the DMCA, for example, the law is also pretty clear: that anti-circumvention is prohibited, even to exercise otherwise legal rights. You guys here at TechDirt never just throw up your hands and accept stuff like that because "it's the law is the law is the law". You argue vociferously in favor *changing* the law when it allows for the abuse of intellectual property to stifle or chill otherwise protected rights. That you fail to do so when it comes to this aspect of trademark law is disingenuous.
The fact is, you guys *constantly* argue against exactly this kind of abuse of intellectual property to censor unpopular speech, but in this one instance, when you apparently approve of the idea of censoring this particular bit of unpopular speech, you just throw up your hands and say, "Well, the law is the law. What can you do?"
It's just a little bit chicken-shit of you, not to put too fine a point on it.
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What's next? Is it now an offensive racist slur to talk about someone having "a chink in their armor"?
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Well each to their own.. though I prefer mine in their own armour that way it's not such a tight fit
:)
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Ocker?
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Re:
not to mention 'white' potatoes...
(hell, you can get exotic 'black', 'purple', etc potatoes in gardening catalogs)
*HOWEVER*, i have no doubt *some* food/veggie/fruit popular names have some racist overtones *EVERYWHERE*...
this ain't one of'em...
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Then you gotta wonder why someone thinks they deserve a trademark.
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Vandals
I don't know anyone of norse ancestry who gets upset at the Vikings football team. I certainly don't. Teams get named for tough guys. Bears, lions, giants, vikings, patriots... While the word redskin may also be used as a racist slur its use as a football team name evokes formidability. People don't name themselves something they look down on.
Some get upset too easily.
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Re: Vandals
Also, "Vandal" isn't a race, so it's not a great comparison.
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I'll even design it
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FTFY
There are many who don't and don't seem to care about this. Those that do appear to be a relatively small but very vocal few.
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Most of these are folks whose grandmother used to annually show them the scars from when she was horsewhipped for "talking Indian" too frequently at the Dawes Act school (forced reeducation camp), so it might not be a fair sample.
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First, the team and mascot aren't being declared illegal or anything, and neither has to change in the first place. They can simply accept that they don't have a trademark on the term "Redskins" and continue on exactly like they have up until now. So to fans who care about tradition -- that tradition is not being threatened even a tiny bit.
If getting the trademark is really such an existential issue, then just change the damned name. It's not sacred or anything. It's just marketing. Changing the name or the mascot doesn't change the team or the school.
I really don't understand where the team and fans are coming from on this at all.
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When it comes to government-granted privileges (which are not rights), the government has always made determinations based on offensiveness.
Try getting a vanity license plate that includes the word "fuck".
Try swearing or showing porn on broadcast TV.
Try naming your kid "shithead".
And so forth.
I find it curious that after a couple of centuries of offensiveness being part of the determination in granting many government privileges, there is only outrage about it now, over this specific issue.
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So you are ok with them excluding the privilege of marriage between certain people based on the fact that other people are offended by it?
I see no problem with "Fuck" vanity plates.
I already said get rid of that part of the FCC.
The naming your kid thing I found kind of funny. When my daughter was born, we filled out paperwork to tell them what name to put on her birth certificate. I don't remember it ever having to be approved by anyone.
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Nope. But your question implies that you think I agree with the USPTO about all this, so let me address that up front: I have no opinion on the fundamentals of this case at all. It strikes me as incredibly complex when you start unwrapping it, and I haven't put in anywhere near enough research or thought to be able to have a reasonable opinion.
"When my daughter was born, we filled out paperwork to tell them what name to put on her birth certificate. I don't remember it ever having to be approved by anyone."
You weren't aware of it because it happens automatically as part of the process, but it was. You can even look up what the specific naming rules are for your state. The states don't vary that much, really, and the rules pretty much boil down to "the name can't be offensive or obscene".
There have been numerous cases of people choosing names that weren't allowed, suing over it, and losing.
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Well, wait a minute. Without knowing the specifics of the case, you can't know that's what's happening.
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Yes, I understand. But it's a precedent that was set nearly 200 years ago, so that horse has been out of the barn for a long time now. I'm simply saying that I find it interesting that people are complaining about it with this Redskins thing, but they weren't all up in arms about it for any of the myriad other things. It smells like people aren't actually upset about the underlying principles involved at all, but are upset because they like the Redskins or something.
"If privileges afforded to people are somehow different, how come SCOTUS determined that separate could not be equal and that was unfair because some were afforded more privileges than others? "
You're mixing your fruits. "separate but equal" was not about privileges, but about rights.
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I'm not really mixing fruits. "Right" or "privilege" is all about how you frame it. Sure you have the right to an education but you may be granted the privilege of attending a particular school or not. And certain schools may have the privilege of more funding than others. The basis that SCOTUS used to declare that separate was not equal was exactly that - privilege. What some had access to had more privilege than what others had. Therefore they could not be equal. It was all based on privilege that affected the rights (like the right to an education) that people had.
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If you mean a right to be provided schooling by the state, then you have no such right. We provide education because it's a huge benefit to society to do so, not because it's a right, nor because we're just being nice.
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You have a right to use publicly funded roads and highways to travel about the country, yet they restrict that right with requiring the privilege of a driver's license. Now suppose someone should argue that you should be denied the privilege of obtaining a drivers license based on the fact that a small group of people were offended by the fact that the government granted you one and the government decided that that was a valid metric with which to justify denying people the ability to drive. Would that make any sense whatsoever?
I use the example of gay marriage for a reason. From a practical legal perspective, what exactly is marriage? It's a government granted license that affords you certain privileges when it comes to taxes, how property ownership is handled, legal exceptions when someone is charged with a crime, insurance, etc. It's not a right. It's a privilege granted by the government. So my question still stands, if it is ok for the government to use offensiveness as a metric to deny access to government granted privileges, why should it be any different with gay marriage? It's pretty obvious that there are plenty of people out there offended by it. There are also plenty of people out there offended by the fact that some people aren't afforded access to those privileges. Many people talk about promoting tolerance without understanding what tolerance is actually about. It's about accepting that which offends you. That is what it is. Passing laws where the government uses offensiveness as a metric like this is the exact opposite of tolerance.
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Again, you have no such right. It's 100% privilege. You do have a right to free travel, but not the right to use the highways to accomplish it.
You are correct about marriage, and it's one of the reasons that I think the government should get out of the marriage business entirely. The legal benefits of marriage can be done contractually, and should be done that way. No government privilege is required.
Nonetheless, we've completely sidetracked. None of this addresses my actual question at all.
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And although most of the cases I have seen have been state decisions, (such as Thompson v. Smith) there have been several decisions where the courts have decided that the use of roads are a public right.
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Redskin"s" potatoes?
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Re: Redskin"s" potatoes?
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Oh dear. What about this:
Unknown if these are/were trademarked terms. I'll take Tim's point on the team name mainly because comparing *people* across ethnic lines is certain to piss somebody off.
But this a tuber. A part of a plant. Bounty of Mother Gaia, etc. etc. Not Au Gratin -- it's Au Natural. The word redskin here is descriptive.
I'm pushin' 60 and have heard the term since boyhood in reference to potatoes. It's the label on the bin at the local Kroger's.
Somebody at the USPTO just wants to be pissed off ;)
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1) red skin> descriptive, adjective modifying a noun
2) redskin> Noun, racial slur for native Americans
The potatoes would be ok if they used 1, but not 2.
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Red Skin?
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That's called civilisation :-)
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For people who think words are offensive, I would recommend them to make a list of these words, stand in front of a mirror and recite that list over and over until these words lose their meaning.
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The only ones being political are those who blame "Political Correctness" and being a dick is not necessarily political.
For example, when society shuns an individual due to their bad behavior, it is rather childish of that individual to blame it on society rather than thenselves.
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You do not have the right not to be offended..
Get over yourselves.
Faggot = measure of cut wood.
Redskins = Football team for many many years
Redskin potatos - GARSH! Potatos with *gasp* red skins.
Fuck the USPTO for being ignorant and moronic.
Fuck Congress for passing laws to protect people from being butt-hurt.
You know what? Fuck you, you don't have the right not to be offended.
It's a Christmas party.
It's Merry Christmas - not Happy Holidays.
It's Daddy Daughter Dance.
Just because a term can be used with derision doesn't mean it cannot be trademarked.
If that were the case, then I'm going to classify white trash as "Windows" - oh man, look at those poor windows slobs!!
Then let's watch as Microsoft loses their trademark protected OS name!! YAY!
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Redskins are Yummy sugary goodness downunder
We have had Nestle REDSKINS in Australia for at least the last 5 decades though admittedly due to sensitive Americans (we call them pussies) Nestle changed the wrapper in the 1990's to remove the American Indian on them and replaced it with just the word, oh and it's trademarked Worldwide.
Before the change.. [image]
After the 'sensitivity' change [image]
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Disappointed
To me censorship is the use of force, large or small, to restrict the message of someone else.
I not very interested in this particular topic, but what bothers me is that there have been a couple articles on Techdirt, celebrating the use of trademark law to force someone to change their speech... because reasons....
The mantra here on Techdirt has always seemed to me to be, counter 'bad speech' with 'good speech.' Of course, good and bad is based on personal perspective.
I realize it's not possible to reason with some people. They may honestly believe their words shouldn't offend other people, or they may secretly hope that they do. We may not be able to use 'our good speech' to counter 'their bad speech.' But laws that can be used to censor the 'horrible people' we disagree with, can be turned around and used on the 'good people' we like.
Pointing out that they aren't being forced to change their name, they just cant have the trademark is just a dodge. The people pushing to remove the trademark aren't doing so because they want to use the mark, they are doing it to try and get the team to change the name. Clear law or not, these articles read like "yeaaa, they are going to have to change because the law says so." If it were something like the Red Cross being targeted for Christian vs. Muslim wars, would the tone of the article be different?
Like I said, I have no interest in debating the topic of the article. I just feel a bit disappointed in what I see as happiness over the use of trademark law (right or wrong) to force someone to change their speech.
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Re: Disappointed
are we 'free' or not ?
IF we *ARE* free, then we are free to be disagreeable or offensive...
IF snyder/whoever owns their own team, product, service, whatever, and they want to name it something that offends a bunch of people, then they should be free to do so...
PRESUMABLY, the people who would be customers of said sports team, products, or services would decide NOT to patronize them because they were too offensive to stomach...
IF other people want to express their disagreement by boycotts, etc, that's fine; but using various legal dodges and pretexts to 'legally' 'shut someone up' is EXACTLY what free speech rights were intended to protect...
non-controversial speech needs NO PROTECTION, because -by definition- no one wants to squelch it, or cares to...
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Re: Re: Disappointed
THEY ARE, they're just not being allowed to have a government-sactioned right to prevent anyone else from using it too. This is actually the opposite of a restriction on free speech, it's preventing a restriction on free speech.
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Re: Disappointed
You're wrong. Nothing in any of this involves using trademark law to force anyone to do anything. Without the trademark, anyone is free to continue to use the term "redskin" whether they believe it is offensive or not. What they're NOT getting is a government-granted monopoly on the term.
The mantra here on Techdirt has always seemed to me to be, counter 'bad speech' with 'good speech.' Of course, good and bad is based on personal perspective.
And nothing in this discussion differs from that position. Tim is just saying there's no need to grant a trademark on terms like this.
But laws that can be used to censor the 'horrible people' we disagree with, can be turned around and used on the 'good people' we like.
Again, read carefully: nothing in this is about stopping anyone from using the terms. It is not about censorship. It's the opposite of that, actually. It's about not granting a single party a government granted monopoly on a term many people find racist.
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Re: Re: Disappointed
Recognising that a certain word is used by a given company for a particular product doesn't mean that the government is agreeing with the word, company or product. If the name was subsequently used in a racist manner, then the company would be in trouble regardless of whether a trademark existed.
I guess if trademark is a criminal issue, then the goverment doesn't want to get into the business of fighting for someone who has registered a racist mark?
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Re: Re: Re: Disappointed
As pointed out by others previously, trademark is a government granted "monopoly" on the use of a mark in a field of commerce. This was originally intended to protect the consumer from knockoff copycats but has been bastardized into a weapon of mass distortion. You can call your company, product, method, etc whatever you want but the government does not have to endorse your choices.
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Re: Re: Re: Re: Disappointed
Why are they endorsing cigarettes?
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Re: Re: Re: Re: Re: Disappointed
Although not an endorsement, I have no idea why the tobacco companies receive subsidies.
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Re: Re: Disappointed
BULL. That IS what it's about.
The people who protested the trademark to the patent office didn't do so because they worried that letting them keep the trademark would have the appearance of government approval of the term. They certainly didn't do so because they objected to the monopoly and genuinely wanted more people to be able to use the term in commerce. They did so because they wanted to use any means necessary to get the name changed. This is about using the power of the government to "force" the team to stop using the name.
Again, that IS what it's about. The entire POINT of the mark being challenged is to "force" the name to change. Tim even said as much in a previous article on this:
When the question is "So how do we finally get the name changed?" and the answer is "trademark law", then trademark law is being used for censorship. I'm not even sure how you can deny that. True, they are technically not banned from using the term if the trademark is revoked. But, as Tim noted, they "might as well" be. Economic coercion by the government is a softer form of censorship, but it's still censorship.
You claim this is not about making the Redskins change their name? Assuming the Redskins don't change their name, the primary effect of revoking the trademark would be to make things easier for counterfeiters of Redskins merchandise, at the expense of the Redskins. Yeah. I'm not seeing the compelling interest in that.
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Re: Re: Re: Disappointed
Not true. Trademark law can still be used for this purpose even if "Redskins" isn't trademarked. It's been done many times over the years. What you do is simple -- you develop a new design, logo, or phrase and trademark that. All of your official merch includes that along with the traditional Redskins stuff.
Mission accomplished. People can no longer legally "counterfeit" official merch because they'd have to use the new trademark to do it.
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Re: Re: Disappointed
What's the cutoff line for 'terms like this?' Who gets to decide? Can I get a copy of this list?
"You're wrong. Nothing in any of this involves using trademark law to force anyone to do anything."
I suggest a test.
If the Government preforms the action: Denies or removes a trademark.
Will the affected party be more likely to change their speech?
Of course we'll need to examine the reason for the government action: Based on speech the government has declared bad.
If we try to look at the root of the discussion and remove the emotion, we come back to.
Someone's speech is more likely to change because of government action. The reason for the action is, use of a word the government has declared to be bad.
Force doesn't have to be overt and final. The smallest pressure is still force. After all, nothing the government did forced the ISPs to enact 6 strikes.... right?
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There's an idea
Then it's there, and can be enforced - fuck the USPTO
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And granting a trademark does not "sanctify" anything, any more than granting a copyright on the KKK handbook means the government approves of its actions.
It's this sort of thinking that leads to cities declaring that they won't give any permits to Chik-Fil-A because they don't like the speech of the owner. The government is not supposed to be in the business of approving which speech is appropriate and which is not.
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Also, and I can't believe this just keeps coming up, losing a trademark stops them from doing nothing other than stopping other people from using the trademarked image/name in question. That's it. It is, in no way, shape, or form preventing speech, and is if anything the exact opposite.
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Actually, you can have an unregistered trademark, just like you can have an unregistered copyright. That's why some marks are (R) and some are (TM), right?
Which is identical to copyright. Sure, you're not preventing them from saying it, you're just making sure they don't make any money off of it.
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That is correct.
(R) means a registered trademark, (TM) means an unregistered trademark.
In the US, an unregistered trademark does not have most of the protections that a registered trademark has, but it does provide some protections. Wikipedia has a pretty good explanation of the difference here: http://en.wikipedia.org/wiki/Unregistered_trademark
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Losing the trademark registration does not mean that they lose the trademark. They can still enforce the mark, they simply lose some of the presumptions that come along with a registration.
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It's like comparing apples and oranges, they're both spherical so they must be the same thing.
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It got denied mainly because it could be confusingly similar to the Washington Redskins team trademark.
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Oh yeah, that had nothing to do with potatoes, whoever filed that was definitely trying to pull a fast one, though given I'm fairly sure trademarks can be transferred, I'm still left wondering if the driving force behind that trademark application was a 'suggestion' from a certain someone.
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Re:
Which is a highly dubious reason. I was going to say "crazy," but I'm feeling charitable today.
There is no requirement that a trademark's design or wording have anything to do with the product or service it applies to. If that were the case, then whole ton of trademarks that exist wouldn't be valid.
The requirement is that the mark has to be actually in use for a product or service (and the potatoes thing certainly fails in that regard).
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Staunch libertarians
Free speech advocates may get their boxers in a twist over the USPTO ruling, but staunch libertarians would note the Constitution protects patents, not trademarks, and that Congress just sort of made up trademark law in 1870, which was invalidated by the Supreme Court, and again in 1881, which only regulated commerce with foreign nations.
The rest of this nonsense only started in 1905, and the US managed to survive for 130 years without national trademark law. I'd be very interested if anyone has empirical evidence that society has improved/become safer/been more productive as a result of this. I won't hold my breath, though.
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OFF The Mark - Totally
This article is such a disappointment at so many levels.
You guys missed the mark, the boat, the barn, everything.
I'm of Irish background and find the term Mick offensive. We should ban all businesses that have a "Mc" in their name. Let's start with McDonalds, I think you guys can carry that torch for me. It's disparaging and hurts my feelings.
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Re: OFF The Mark - Totally
The function of trademark is to provide the consumer some amount of assurance that the branded product they are considering purchasing is indeed the product they think it is rather than some fly by night product being sold by a scam artist. It is a shame that trademark is being abused for nefarious purpose and that the general public perception of same is one of acceptance.
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Re: OFF The Mark - Totally
Where is that being stifled? Nobody is saying the Redskins can't keep calling the team the Redskins.
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I don't get it
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Just Asking
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Re: Just Asking
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Re: Just Asking
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Just Asking
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Semantics?
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Semantics?
And should Native people be called "Native Americans" since they were on this land before the Europeans called it "America"?
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You receive no points, and may god have mercy upon your soul
And if the NFL team's mark was removed, it wouldn't mean Snyder had to change the name of the team, it would just mean that anyone else, were they so inclined, would be able to use the term in football commerce at that point (although, not the logo, or other trademarked identifiers for the team).
Incorrect.
All it would mean is that Snyder would lose his registration, which would cost him some presumptions in litigation, and some international priority rights. But, he would still have a common law trademark.
HTH
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