By now, everyone has read that the Trademark Office issued its long-awaited decision, ruling that the word “Redskins” was disparaging to a substantial composite of Native Americans, and as a result, ordering six of their trademark registrations to be cancelled.
This is a very lengthy and serious 99 page analysis. But most importantly, Congress should not be requiring the United States Patent and Trademark Office to decide the social issue of what terms are “demeaning.” The three judges could not agree unanimously (it was two to one). While the Trademark Office makes judgments every day about intricate meanings and connotations of terms, the issues here go far beyond the inherent principles that make a mark registerable or not.
In a lot of ways, trademark law is very simple. A company can register its rights in a trademark unless (1) someone else has already registered a similar mark first, or (2) a term should be left free for everyone to use because it actually names an article or describes something about the article or service.
But remember that a decision by the Trademark Trial and Appeal Board cannot stop the Washington Redskins from using its trademark. Meanwhile, these actions consumed great amounts of time (over 15 months just to write the opinion) and huge numbers of resources to decide the type of social issue that the Board was never designed to regulate.
In a world where Congress never really anticipated the present environment, where virtually every word, sound, and picture is broadcast every day to the phones in their pockets, and the televisions in their living rooms.
The Washington Redskins and New York Giants face off at FedExField (Photo credit: Wikipedia)
What the Trademark Office decision does not do:
- Prevent the Washington Redskins from using the word Redskins. All the Trademark Office has said is that it is going to cancel those registrations. That certainly will be appealed.
- Stop use of the term.
- Make any ruling about the Redskins logo. That issue was not part of this case.
- Decide that the term “Redskins” is not capable of uniquely identifying the Washington football team.
- Decide that the word “Redskins” is understood by the American population to be a racial slur. The Board did find that the evidence presented by the parties showed that a “substantial composite of Native Americans” found the term to be disparaging between 1967 and 1990.
Pity the poor United States Patent and Trademark Office. Congress has put it in the untenable position of having to decide an issue laced with political, moral, and societal questions. The Trademark Office had to absorb so many documents that the list alone runs over 75 pages. The evidence ranges from an article in American History Review from 1982 called “From White Man to Redskin: Changing Anglo-American perceptions of the American Indian,” to an excerpt from Frederick Whitaker’s “Hunters and Redskins” from 1909. There was a series of letters between the owners of the Washington Redskins team and various Native American groups, depositions from the owner of the Washington Redskins football team and a cadre of linguistic experts. There were untold numbers of letters, opinions, and viewpoints from Native American and non-Native American groups on both sides of the issue.
All the Trademark Office was deciding is that between 1967 and 1990, Native Americans found the term “Redskins” to be disparaging, not in a vacuum, but related to the services of the Washington football club.
Regardless of any appeals, it is important to note that the Trademark Act does say that an entity cannot register a disparaging term. It never says that an entity cannot stop someone else from using a confusing disparaging term. Presumably, it will be up to court, as a matter of public policy, to be asked some day to say to the Redskins: you have trademark rights in this term, but we are not going to enforce your rights because we think it is contrary to public policy to help a company support a word that we find to be objectionable. Right now, trademark law does not prevent an entity from owning and trying to enforce rights in a term like “Redskin,” even if law burdens the Patent and Trademark Office with decisions about what it will register.
Maybe Congress needs to amend the law to delete this restriction on registration in the Trademark Office and replace it with a statutory amendment that addresses when and if courts may refuse to enforce trademark rights in terms which are said to violate the public interest.
This post originally appeared on Forbes