So what will you say if the court reaches a different conclusion?
“You’re a hypothetical hypocrite!” This is one of the lamest, last-resortest arguments around. It seems like I’m seeing it a lot lately.
Interesting: that could flip the decision.
I poked around the internet and found 2 citations of interest. Number 1 is from a trademark website: it lists ways trademarks can be cancelled and lists cases related to defendant’s mark disparages members of a particular group.
Number 2 is a legal analysis: among other things it explains the Harjo test, the 2nd part of which introduces the referenced group concept. That was a TTAB (Trademark Trial and Appeal Board) decision. It is based upon, “The Lanham Act [which] prohibits registration of marks that “may disparage” persons or institutions “or bring them into contempt or disrepute.” 15 USC § 1052.” Harjo’s Legacy: “In Re Heeb Media” - Trademark - United States
The Harjo test came out of the previous Redskins litigation: while that effort was overturned on a technicality[sup]1[/sup], the underlying principles apparently remained as precedent. The author concludes with the opinion that, “… the history of the TTAB’s disparaging marks decisions is fraught with unpredictability.”
Personally, I think the trademark fails the MfM double take laugh test, to wit: Redskins? Seriously??!?!?! Of course it’s offensive, except insofar that it’s highly familiar.
[sup]1[/sup]Translation: I don’t want to go upthread and retrieve the laches discussion.
Depends. If they say it was because of insufficient evidence, I will be surprised, but I think we all know that’s unlikely to happen. While you rail on technicalities that make this a poor decision by the Patent Office, you have yet to impugn the evidence at all other than with poor analogies while ignoring the ruling itself which stated the evidence presented was “overwhelming.”
(As an aside, the fact that you have yet to revise your position that the term is racist despite being unable to poke a hole in the evidence that was presented while your only defense in the matter is legal loopholes instead of the veracity of the claim is telling. You apparently refuse to even consider that the term is racist and that’s that.)
If it’s overturned due to the same kind of “technicality” that caused the court to overturn it last time, I’ll still feel no different because it won’t change what I have asserted all along: The term is racist and has been adequately shown to be so, and the higher courts have deemed that the team is within it’s right to trademark an offensive term as their name.
What would you say if the court does overturn it but does so with the concession that the term is, indeed a racist term, but that such a determination doesn’t matter because of a legal technicality? The team can keep their trademarks, but not because it isn’t a racist term.
See, I maintained all along that the term is racist and offensive and should be changed and I even concluded that it wouldn’t be changed through legal fiat. Overturning the decision from the Patent Office without specifically doing so because they take umbrage with the evidence that was presented by the Native American group would bum me out, but it wouldn’t change how I feel about the term or the evidence that I can use for holding that belief or whether Danny Snyder has a moral obligation to change the name, if not a legal one.
If anything, being overturned without taking the evidence that the term is racist into question (which I feel is the most likely scenario if it is overturned) could be a galvanizing event for those of us who are applying public pressure to the team, league and advertisers that the name should be changed.
I think it will be, actually. Because I think the evidence was insufficient to show that the term was disparaging as understood by a substantial composite of the general public.
The TTAB evidence shows only that the term is understood as disparaging by some Native Americans. That’s not the correct legal standard, as I understand it.
That’s not a technicality. That’s using the wrong standard to assess the evidence.
The problem with this question is it’s implicit assumption that a word is, or is not, indisputably racist. I don’t agree that this is true. The vast majority of Americans would not agree that “Paki,” is a racist term – they’ve never even heard that term. To a Londoner, the term is known, and racist.
So: to whose ears would the court be referring in determining that the term is racist? And to whose ears SHOULD the court be referring?
This isn’t a technicality. It’s central to how this law needs to be implemented.
Again let me stress that this isn’t my area of legal expertise, so if someone knows the area or has more case law that sheds some light on the use of “general public” as opposed to “referenced group,” then I am all ears. Or eyes, actually, given the medium.
There’s nothing in the statute to contradict the TTAB’s standard and I haven’t found any court decisions that do so.
The prior district court ruling in this situation found an absence of “substantial evidence” in the prior board decision, but never said exactly what the evidence needed to show.
It looks like to me that this might be an issue of first impression, but I also don’t see anything to indicate that the board’s standard is wrong.
In re Mavety Media Group Ltd., 33 F. 3d 1367 (Federal Circuit 1994)
(Emphasis added)
Bricker has already said this but I’ll restate: if the ruling is overturned does that mean it’s no longer racist? My guess is that your opinion won’t change, just like my opinion hasn’t changed. I will concede that the board’s opinion counts way more than mine.
That is a scandalous mark situation, not a disparaging mark situation. It’s perfectly logical for them to be approached from opposite viewpoints because they are essentially opposite in nature.
The purpose of rejecting scandalous matter is to bow to the majority’s sensibilities. The purpose of rejecting disparaging matter is to bow to the sensibilities of an individual or a group.
Now I’m not saying that this view will prevail in court, but I see no reason to assume that the standard for scandalous matter applies to disparaging matter.
IANAL, but the fact that Mavety uses a different standard doesn’t necessarily strike down or undermine another standard. The referenced group standard is used by the agency in question and is a plausible interpretation of the Lanham Act.
To my non-legal eyes, ISTM that a court reviewing the TTAB could go either way, but that to overturn their standard would constitute some level of judicial activism, insofar as the referenced group standard is both plausible and insofar that the judiciary branch defers to the considered expertise of the agencies in general. It’s also my understanding that there aren’t any bright lines to guide judges insofar as agency review is concerned, based upon my thin reading of EPA cases, mostly via secondary sources.
TLDR: The referenced group standard is not implausible at all, but that doesn’t mean that it will be upheld.
More generally, a lawyer once explained to me that there’s really no general theory of the law, unlike certain other academic disciplines. That underlying reality gives cause to some perplexity and some cynicism on my part, depending upon mood.
Well, I doubt whether the court will decide that broad question, at least as it is framed. Bricker suspects that the court will decide that if a substantial composite of the general public doesn’t think that Redskins is racist and a substantial composite of the referenced group disagrees, the majority wins. So you could trademark all manner of slurs and offensive references against the Armenians for example, as well as the genocide they suffered, provided the references go over the head of the majority. Which in practice they would.
ETA: Good point Acsenray. For completeness I’ll note that Mavety was cited in the Redskins litigation, though that doesn’t contradict your view.
Got it.
Well, again, not my area of law, and frankly this is the first I’m aware that different standards are used to analyze disparaging marks and scandalous marks.
These issues have so rarely ended up in court that I cannot claim to know definitively whether they should be judged by the same or different standards. I think there are plausible arguments either way. But, as I said, I don’t see a reason why they would necessarily be subject to the same standard.
To me, the “general public” standard makes far more sense than the “referenced group” standard.
But what-makes-sense-to-Bricker is (sadly) not a reason to adopt a standard.
So it seems to me that if the standard is “referenced group,” then I think the TTAB reached the correct conclusion. But if the correct standard is “general public,” then I think they did not.
Am I correctly understanding that, even if 100% of Native Americans considered the term “Redskin” a highly offensive racist slur, you feel it ought to be* permissible as a trademark, so long as Native Americans are a small enough proportion of the general population, and no one else is bothered by it?
- i.e., not in the legal sense but in the “if I made the rules” sense
It seems to me a rather undesirable situation for disparaging slurs against minority groups to be tolerated so long as the group is a sufficiently small minority – if anything, the smaller minority groups ought to be afforded more protection from the oppression of the majority.
At any rate, my feeling about offensive team names is that if it’s at least as offensive as naming an NFL team The Jews, it ought to be off limits. (Morally off limits, I haven’t a clue about the legal question.) Which would probably mean doing away with Indians right along with Redskins. That fact that disrespectful treatment of Native Americans has been historically tolerated doesn’t make it more acceptable IMO.
I’ve done this several times already, but in the interest of keeping the lines of discussion clear, let me just emphasize again—
There’s no question that in a legal sense “Redskins”—or any other slur—is permissible as a trademark. The team can continue to use it and enforce it’s trademark rights under federal and state law regardless of the outcome of this particular proceeding.
The question is limited to whether the Redskins can keep federal trademark registrations.
What does federal trademark protection offer that common law (?) trademark protections do not in the absence of registration?
OK, that’s a useful clarification (and sorry I overlooked it in scanning the thread), although to be honest I’m not totally clear on what the effect of registering a trademark is, other than that it makes it look like (R) instead of TM. 
(Perhaps this was covered upthread – if not and you want to explain it, that’d be great, although I suppose I could just read the wikipedia entry.)
At any rate, my point was just that a rule which gives less weight to a term’s offensiveness simply because the group of people it disparages is a small minority is not a rule that makes much sense to me. (Whether it’s what the law says, I don’t know. It wouldn’t be the first time the law said something that didn’t make much sense to me.) I thought Bricker had somewhat opened that up that topic with his comment that a “general public” standard “makes-sense-to-Bricker” more than a “referenced group” standard. It seems to me that only makes sense if we don’t mind the majority trampling on the minority. (Of course how much trampling we’re talking about if we’re just reducing an (R) to a TM, I don’t know.)
Yes.
IMO, the law should not protect a right to not be offended. That’s the rule I’d make if I were making the rules.
I would not choose to exercise my right to offend people – if I were the team owner, I’d change the name. But if I were making the law, I would not use the law to compel the team owner to change the name.
I don’t think this is the question you mean to ask. These are reasons why:
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The distinction is not between “federal trademark protection” and “common law trademark protection.” Trademark rights are created by (a) federal statute, (b) state statute, and (c) common law. Registration does not create trademark rights.
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Thus, the distinction is between a trademark that has been registered federally and one that has not been registered federally. A trademark that has not been registered federally is still protected by by (a) federal statute, (b) state statute, and (c) common law, the same as a registered trademark.
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Registration grants no protections or rights. What it does grant are some “short cuts” when you want to go to court to assert your trademark rights. Some of those advantages are listed in this post (that is a partial list).
If that doesn’t answer your question, then I’m happy to elaborate further.
I think the only tangible benefit is the assistance of the US Customs Service I stopping infringing items from crossing the border. But I could be missing something…