The Redskins lost a major challenge this week to the cancellation of the their trademark protection by the Patent and Trademark Office. I have previously written about my disagreement with the U.S. Patent and Trademark Office decision to rescind federal trademark protections for the Redskins as a racially disparaging name as well as the underlying law used to strip the team of its trademark protection. The law allows for a small administrative office to effectively dictate the outcome of a long simmering societal debate over the team name. More importantly, the standard for determining what names or words are disparaging remains dangerously undefined with striking contradictions as we have previously discussed in permitted and disallowed trademarks.
I have long criticized the rise of a “fourth branch” within our tripartite system. Agencies have gradually assumed greater authority and independence in the governance of the country, including the resolution of political and social issues like the debate over team names. With the help of a series of Supreme Court decisions, agencies now enjoy sweeping deference in their enforcement of federal laws. Adding to this dominance are judicial rulings giving agencies heavy deference in their interpretations of laws under cases like Chevron.
The decision of Judge Gerald Bruce Lee affirms the earlier finding by an administrative appeal board that the Redskins name should be stripped of protection. In his 70-page decision, Lee adopts the approach of the Federal and Fifth Circuits that the denial of trademark registration is not by definition a denial of free speech since “no expression is suppressed.” The court rejected arguments that the decision effectively chills or curtails speech through such a significant regulatory act.
It is an interesting and well-written decision that will now be appealed by the team. The main problem is Section 2(a) of the Lantham Act, which I have previously criticized as poorly crafted and ill-defined. Whether a name “may disparage” a group is an absurdly broad concept, particularly when such actions can be brought by a small minority of individuals within that group. While the courts will not consider this ruling, Congress should take up the underlying statutory standard in my view.
Here is the decision: Redskins-decision
47 thoughts on “Federal Court Upholds Decision Stripping Redskins Of Trademark Protection”
“The entire issue was invented by activists who needed a cause and couldn’t find anything actually harmful to protest. The idea that the law doesn’t protect something merely because hardcore activists protest it is ridiculous.”
These “Indian” activists – how do we know that they’re not all fake Indians (a la Elizabeth Warren, Ward Churchill, Andrea Smith, etc.)? How do we know that this whole stupid “controversy” hasn’t been manufactured entirely by mediocre white people gaming the affirmative action system for unearned bennies and attention? We don’t. I keep hearing that “Redskins” is “patently offensive” and other stock outrage phrases but is it really? Olly (above) makes a great point – “Oklahoma” means “red people.” It is how at least some Indians referred to themselves, and there is nothing patently offensive about it. (Maybe those who find it patently offensive should ask themselves why they are so patently offended by skin color.) And if even using the term “Indian” to denote a team is offensive, why the focus on Washington when there are major national teams in Cleveland and Atlanta named after Indians? And why stop there – why not go on a jihad and eliminate all these supposedly patently offensive references to tribal team names. Why does that not concern this judge? And the other activists? Especially since some teams’ tribal mascots (like Atlanta’s) are cartoonish and could be viewed as demeaning in stark contrast to the dignified drawing of the man who represents the Washington Redskins. And why not go after all tribal identity team names, like Vikings. It’s so clear that Washington’s owner just pissed off the wrong hacks by refusing to kneel to their fake controversy, probably white hacks who could care less about actual Indians and are just inaccurately exploiting their feelings for personal and political (same thing) gain. And we all just go along with it. Pitiful.
Mr. Turley expresses well-founded concern that a “small administrative” office wold be making a decision about a long-simmering issue. To enlarge the concept of this “small administrative group,” we might call it a a small group of men with power who are making decisions pretty much on their own, rather than letting society work it out. The implication is that they are acting in an extra-legal manner, perhaps outside the boundaries of the constitution. Whether that small coterie is expressed as the 4th estate (unelected bureaucrats), or a group of lawyers who are acting outside of their appointed sphere of decisions making. The Supremes?
Name the Washington D.C. franchise the “Native Americans.”
That will strike fear in the hearts of men on opposing teams and sell lots of merchandise to the collectivist liberal apologists and enviro-whackos of the “dictatorship of the proletariat” inside the “beltway.”
The inmates have taken over the asylum.
Notre Dame should have problems shouldn’t they? We can find at least one Irish who doesn’t like the pugnacious drunken little redbeard leprechaun shaming the whole Irish race which is reknowned for its peacefulness and sobriety.
Why doesn’t anybody want to name a football team, “THE QUAKERS” or how about “THE EPISCOPALIANS”
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