I don’t know what the left argument is. You could ask them I suppose.
My argument is that private citizens have the right to be racists if they choose. But the government has no obligation to assist them when they are racist. So the Washington Redskins have the right to choose a racist trademark. And the government has the right to choose to not accept a racist trademark for registration.
If the football team wants government trademark registration it has to comply with the government rules for registration. The government can reasonably refuse to register a trademark it considers offensive.
Calling this an issue of free speech is nonsense. If this was about free speech then the government would allow everyone to use any trademark they wanted - that’s free speech. Trademarks are about limiting free speech in order to protect property ownership.
By international agreement (Paris Convention), there are many restrictions on what cannot be registered as a trademark in contracting states. For example, flags of countries, seals of international organizations and royalty, etc. Most countries also have restrictions on registration of trademarks that are somehow offensive or against public morals. That usually manifests as swear words, insults, provocations or pornographic logos.
I once came across a Japanese trademark registration for the words “GO FUCK YOURSELF”. The registrant had cleverly gotten it past the Japanese Patent Office by writing it in bubble-style font, slightly squished together, and then turned it upside down. Looking at it that way, to someone whose native language is not English, it just looked like an abstract design.
But is it really government “assistance”? The default position is that a trademark (or a copyright) is registered. For the government to say that speech involving X cannot be registered (or copyrighted) then the government is giving preference to the “anti-X” position and making sure that a non-zero quantity of “X” speech is not making it into the public sphere of ideas. Only the most Scalia-esque of textualists wouldn’t see that the power of government by regulatory rule doesn’t achieve the same results as by an outright ban.
Would you take the same position were it religion instead of speech? What if government gave tax breaks to Christian churches but not to Islamic ones? Sure Muslims have the right to attend mosque, but the government doesn’t have to assist them, right?
The statement might be more true of copyrights, but it’s definitely not true of trademarks. Trademarks are examined before they are registered to ensure that they meed the criteria for registration.
Very true, so I should rephrase. Yes, trademarks are examined, but they are examined to make sure that they comply with government regulations. If those regulations favor one form of speech over another, then the regulations get into dicey constitutional territory.
In your experience, what is the test for offensiveness? Does the design have to be offensive? The words on the design? An argument could be made that anything trademarked by the Ku Klux Klan is per se offensive. Even if they redesigned their logo to be a picture of the sun rising in the background with the words, “Ku Klux Klan, Since 1866” in the foreground, a good argument could be made that minorities are offended by such a thing.
Does the government go THAT far in applying the offensiveness test?
It is absolutely an issue of speech. The market determines the offensiveness of a trademark, not a 3-panel judge in Washington. This panel has abrogated our right to voice discontent through our dollars.
Mozilla paid a price due to market forces (as it should be). The Redskins are paying a price due to political forces. This is not how the system should work.
As you note, the government does have regulations. And that’s fine as long as they’re reasonable regulations that are consistently applied.
Is it reasonable for the government to have a regulation saying that it won’t register a trademark that is racially offensive? I think it is and many other people appear to think so as well.
Would it be reasonable for the government to have a regulation saying that it won’t register a trademark that contains the color blue? Most people, including myself, would say that would be unreasonable.
That’s the thing about the government. You can’t just assume the slippery slope because all of us are standing alongside the slide, collectively deciding how fast it goes. The government is only allowed to go as far as the public consensus allows it to go.
But it does mean that your potential profit from you work is curtailed and the value is reduced. It creates a chilling effect on free speech by its very nature.
And what if the government decides that criticism of the president is offensive speech?
I can think of some religiously oriented symbols that many of the same people having a fit about the Redskins would have a double fit if the PTO allowed.
The NPR linguistics guy was on Fresh Air last night, and said that they could not find any instance of “Redskin” being used inoffensively. Not true of “Indian” or “Brave” - though there are other reasons they might be suspect.
Wait, so by letting someone else say or write the same thing you just said your right to free speech is infringed upon? I suppose you could call it the “Mooooom! He’s copying me!” defense.
But as the left is quick to point out, not everything is left to the democratic process because the majority might trample on the rights of the minority. I hate racism as much as the next guy but it IS political speech. Now, vulgar slurs against a race aren’t protected so much, but it’s not very far from today’s “hate speech” laws to say that well thought out scientific racism should be unprotected speech. I think that such speech is and should be protected and further not subject to the public’s whims.
It absolutely infringes upon it. Many works only get written because of a profit motive. If the government decides that position “X” is offensive and refuses to copyright texts in favor of X, then the texts that take the “anti-X” position will outnumber and dwarf the X texts. Public opinion will shift towards the anti-X position because of a government policy.
You may say that is fine because it is still LEGAL to advocate for X, but substitute religion for speech and see how far you go down that road.
Freedom of speech does not imply the right to be paid for that speech, and if we’re passing out copyrights for religious beliefs there are a couple of thousand years royalties due on a testament that used to belong to the Jews. Of course, the authors of Gilgamesh might have a prior claim.
But you’re still making the mistake of confusing freedom of speech and property rights.
Limiting freedom of speech would be something like government censorship telling people that they can’t publish something. And guess how a copyright works? The government tells people they can’t publish something because somebody else owns the exclusive rights to it. So if the government were to revoke a copyright and allow anyone to publish a work then it would removing a restriction on freedom of speech.
It’s property rights that are being protected by copyrights. The government says you own a work and you have the exclusive right to it. And they will enforce this by prohibiting anyone else from publishing the work you own. It’s the government restricting everyone else’s speech rights in order to protect your property rights.
Specifically, I believe that just because the team might lose it’s trademark registration does NOT in fact make the “Redskins” trademark up for grabs, any different than it would have been prior to 1967, when the first relevant registration was obtained —
remember that the Redskins had been in existence since the 1930s and they had all kinds if enforceable rights for their UNREGISTERED trademarks up until then.
They could bring claims under Section 43(a) of the Trademark Act for trademark infringement (maybe also trademark dilution), false advertising, unfair competition, etc.
They would still have their common law rights and their rights under state law. Losing a federal registration would make certain aspects if enforcement more complicated and burdensome, but certainly not a problem for companies with the resources of Pro-Football Inc. (Dan Snyder) or the NFL Properties (which administers all the clubs’ trademarks).
Also, note that this would not represent the first refusal to register under Section 2(a) for disparagement, etcetera.
I don’t know off the top of my head whether the free speech question has been tested in court, but if I had to guess, I would say that a court would affirm the right of the government to refuse to register trademarks incorporation racial slurs and words such as “fuck” and “shit.”
I think there’s a good chance for this particularly because the government is not in effect stopping you from establishing such a trademark (if I’m right about what I said in my previous post). It’s just denying the extra benefits of federal registration.
I know that I’m in the minority opinion, but the use of the words “fuck” or “shit” at least in my opinion, are not protected. A person can express his idea without the use of those offensive words. There is no need to protect offensive speech when the message can be communicated in another way.
But I take issue with the idea that since the government is only conferring a benefit that it can be arbitrary, capricious, and set whatever rules it likes. Any system must comply with the due process clause. Of course I have no special right to register a trademark, but if the government sets up a system, any system, it can’t discriminate based upon political speech or any other protected reason.
I don’t have a right to a trademark, but I have a right that my application to a trademark won’t be denied because the government doesn’t like my message.
You can say that about any word you choose. The fact that the words “fuck” and “shit” have a very specific effect, such that you label them as “offensive” kind of prove to me that they are indeed indispensable for certain kinds of expression. “Offensive” speech is protected, and, in my view, should be the most protected kind of speech.
“Arbitrary and capricious” has a specific meaning in the law. I don’t know if you are referencing that meaning or not. It has to do with the procedural application of government authority or legal standards. In this case, I doubt you can show that the government has been arbitrary and capricious, at least in the sense meant under U.S. administrative law.
Arguably, it does comply with procedural due process. I suppose the question it whether it complies with substantive due process. Substantive due process has to do with deprivation of a fundamental right. So, I guess, the first step is to prove that denial or cancellation of a trademark registration involved a fundamental right.
But you haven’t answered the initial question of whether the government has denied you a fundamental right.
I would argue that because federal trademark registration does not in itself embody trademark rights, that it’s not denying you any right at all, much less a fundamental right. And that’s because (at least under my argument) you can still enforce your trademark rights, under both federal and state law.
Federal trademark registration itself does not grant property rights; it does not grant free speech rights. Thus taking it away does not deprive you of a property right or free speech.