350px-Washington_Redskins_logo.svguspto-logoBelow is my column in the Sunday Washington Post on the stripping of the trademark protection from the Washington Redskins. The decision effectively negates a decision in 2003 by the Trademark Trial and Appeal Board that barred a challenge to the Redskins name on the basis that such a challenge had to have been made soon after the Redskins registered their nickname in 1967. In 1999, another court issued a similar ruling. This use of the trademark laws creates a dangerous slippery slope as the agency identifies names that it considers disrespectful. House Minority Leader Nancy Pelosi celebrated the decision as sanctioning “disparaging or offensive names” and added “[w]hile we respect the right to free speech, slurs have no right to trademark protections.” But what of other “slurs” that reference ethnicity like the Atlanta Braves or the combative Kansas City Chieftains. There is also the cartoonist grinning Chief Wahoo of the Cleveland Indians. These teams have critics who say that the names and images are offensive. What is the objective line to distinguish such teams? The column focuses on the highly ambiguous standard in the federal law that would seem to make a vast array of marks as potentially violative and unprotected.

The decision this past week by the U.S. Patent and Trademark Office to rescind federal trademark protections for the Redskins may ultimately tip the balance in the controversy over the 80-year-old name of Washington’s football team. If so, that would be a shame. Not because there’s insufficient reason to consider the name “disparaging to Native Americans,” as the patent office determined. Many of us recoil at the reference to skin color as a team identity. The problem is that the Redskins case is just the latest example of a federal agency going beyond its brief to inappropriately insert itself in social or political debates.

Few people would have expected the future of the Redskins to be determined by an obscure panel in a relatively small government agency. Yet the Trademark Trial and Appeal Board showed little restraint in launching itself into this heated argument — issuing an opinion that supports calls for change from powerful politicians, including President Obama and Senate Majority Leader Harry Reid (D-Nev.). The board had at its disposal a ridiculously ambiguous standard that allows the denial of a trademark if it “may disparage” a “substantial composite” of a group at the time the trademark is registered.

This standard isn’t concerned with how widely offensive a trademark may be now, or with how the general population or even a majority of the group in question views it. It didn’t matter to the patent office that polls show substantial majorities of the public and the Native American community do not find the name offensive. A 2004 Annenberg Public Policy Center poll found that 90 percent of Native Americans said the name didn’t bother them. Instead, the board focused on a 1993 resolution adopted by the National Congress of American Indians denouncing the name. The board simply extrapolated that, since the National Congress represented about 30 percent of Native Americans, one out of every three Native Americans found it offensive. “Thirty percent is without doubt a substantial composite,” the board wrote.

Politicians rejoiced in the government intervention, which had an immediate symbolic impact. As Sen. Maria Cantwell (D-Wash.) said Wednesday: “You want to ignore millions of Native Americans? Well, it’s pretty hard to say the federal government doesn’t know what they’re talking about when they say it’s disparaging.”

For the Washington Redskins, there may be years of appeals, and pending a final decision, the trademarks will remain enforceable. But if the ruling stands, it will threaten billions of dollars in merchandizing and sponsorship profits for NFL teams, which share revenue. Redskins owner Dan Snyder would have to yield or slowly succumb to death by a thousand infringement paper cuts.

The patent office opinion also seems to leave the future of trademarks largely dependent on whether groups file challenges. Currently trademarked slogans such as “Uppity Negro” and “You Can’t Make A Housewife Out Of A Whore” could lose their protections, despite the social and political meaning they hold for their creators. We could see organizations struggle to recast themselves so they are less likely to attract the ire of litigious groups — the way Carthage College changed its sports teams’ nickname from Redmen to Red Men and the California State University at Stanislaus Warriors dropped their Native American mascot and logo in favor of the Roman warrior Titus. It appears Fighting Romans are not offensive, but Fighting Sioux are.

As federal agencies have grown in size and scope, they have increasingly viewed their regulatory functions as powers to reward or punish citizens and groups. The Internal Revenue Service offers another good example. Like the patent office, it was created for a relatively narrow function: tax collection. Yet the agency also determines which groups don’t have to pay taxes. Historically, the IRS adopted a neutral rule that avoided not-for-profit determinations based on the content of organizations’ beliefs and practices. Then, in 1970, came the Bob Jones University case. The IRS withdrew the tax-exempt status from the religious institution because of its rule against interracial dating on campus. The Supreme Court affirmed in 1983 that the IRS could yank tax exemption whenever it decided that an organization is behaving “contrary to established public policy” — whatever that public policy may be. Bob Jones had to choose between financial ruin and conforming its religious practices. It did the latter.

There is an obvious problem when the sanctioning of free exercise of religion or speech becomes a matter of discretionary agency action. And it goes beyond trademarks and taxes. Consider the Federal Election Commission’s claim of authority to sit in judgment of whether a film is a prohibited “electioneering communication.” While the anti-George W. Bush film “Fahrenheit 9/11” was not treated as such in 2004, the anti-Clinton “Hillary: The Movie” was barred by the FEC in 2008. The agency appeared Caesar-like in its approval and disapproval — authority that was curtailed in 2010 by the Supreme Court’s decision in Citizens United.

Even water has become a vehicle for federal agency overreach. Recently, the Obama administration took punitive agency action against Washington state and Colorado for legalizing marijuana possession and sales. While the administration said it would not enforce criminal drug laws against marijuana growers — gaining points among the increasing number of citizens who support legalization and the right of states to pass such laws — it used a little-known agency, the U.S. Bureau of Reclamation, to cut off water to those farms. The Bureau of Reclamation was created as a neutral supplier of water and a manager of water projects out West, not an agency that would open or close a valve to punish noncompliant states.

When agencies engage in content-based speech regulation, it’s more than the usual issue of “mission creep.” As I’ve written before in these pages, agencies now represent something like a fourth branch in our government — an array of departments and offices that exercise responsibilities once dedicated exclusively to the judicial and legislative branches. Insulated from participatory politics and accountability, these agencies can shape political and social decision-making. To paraphrase Clausewitz, water, taxes and even trademarks appear to have become the continuation of politics by other means.

What is needed is a new law returning these agencies to their core regulatory responsibilities and requiring speech neutrality in enforcement. We do not need faceless federal officials to become arbiters of our social controversies. There are valid objections to the Redskins name, but it is a public controversy that demands a public resolution, not a bureaucratic one.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University and has testified in Congress about the shift of power in the federal system to federal agencies.



  1. Fellow Americans (most of you, but not all of you):

    Trademarks, patents and copyright management by the Federal Government was designed, and for the most part has been administered from a benign, neutral viewpoint. All rights granted to a trademark holder is based on first in commerce use, even ahead of others filing ahead of the eventual trademark recipient. Trademarks have been turned down for being too generic or trying to trademark one word like “water”. There does not exist a reason for refusal based on the morality or offensiveness of the trademark in question. Ever.

    This entire episode is nothing more than another “Boogyman” creation by the Liberals that currently control the Democratic Party. It is another example of using Government services to “Hurt” someone or some entity to further a political agenda and push the Liberal mantras.

    If you go onto the trademark site and do a search for derogatory trademarks that would be offensive to someone or some group, there are literally thousands of examples.

    The current Liberal/Progressive Obama administration is using all of the Federal agencies to un-constitutionally further a huge list of Liberal agendas or to silence, restrict, and intimidate perceived enemies, or in the case of the Ferguson shooting by a cop, abuse the Justice dept. by inciting black Americans to get out and vote.

    When the upcoming election is over, it will fade until the next election, when the Liberals will trot it out again, trying to “Hurt” someone or some entity in the name of political correctness.

    Thank god the Clinton democrats have admitted that they made the biggest mistake of their life voting for Obama, twice. Most that I have contact with plan to either vote republican, or stay home and not vote at all.

    In a few more days, America will go to the polls and let the liberals know just what they think of how the government is being run. All of the major television networks, except for Fox and recently CNN, have either totally “censored” the news about the upcoming election, as in the case of ABC news doing virtually no stories about the mid-term elections in order to suppress any re-examining of the Democrats and Obama.

    Obama is forcing America from one Constitutional crisis to another.

    But else should you expect from a agitating community organizer.
    Jim Rose

  2. It is a shame when someone claiming rationality is not smart enough to recognize the simple facts of the case: the TTAB did not infringe any rights but withdrew Federal responsibility from protecting a name that offends 30% of Native American; not a majority but a substantial number, which is what the law requires. Anyone who disagrees and claims to be a believer in obeying the law is a hypocrite.More likely they are simply RACISTS!!!!

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  4. As is so often the case, the real bigots here are the white liberals who are in effect saying that the Native American is too naive to realize the term is disparaging. Sure it has been used non-disparagingly for over 100 years. Sure 100’s and 100’s and more 100’s of schools – including native american schools use the term “redskins”.

    None of that matters because Big White Man is here to rescue the savage and teach them that such terms are insulting despite what the Native American may think, they just don’t understand that.

    yeah. Those who are calling Redskins an insult are the only bigots here

  5. Whatever happened to Free Speech and multiculturalism?

    Oh! That’s right. It’s my culture or the highway.

    You say what you want to say and I say what you want me to say.

    Multiculturalism as long as it’s my culture that’s ism.

    I’m African-American, Mexican-American, Asian-American.

    And you’re white!

    I LIKE it.

    I need my fair share of abuse.

  6. Has the US Patent and Trademark Office’s decision to reverse federal trademark protection for the National Football League team the Redskins magically increased economic/educational opportunity for Native American Indians?

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