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
It depends on what the meaning of the word “trademark” is.
We know that “state” means “federal” and “federal” means “state.”
We know that “is” does not mean “is.”
We know that “illegal alien” means “U.S. citizen.”
We know that a “nation of laws” means a “lawless no man’s land.”
Not to worry. Obama is conducting negotiations with Iran that will benefit America. Oops! Those negotiations depend on what the meaning of the word “benefit’ is.
And Obama just issued 5.5 “work permits” to illegal aliens, oops, I mean “U.S. citizens.” Wait a minute. U.S. citizens don’t require work permits.
It all depends on what the meaning of the words “constitutional tipping point” is.
Ben Franklin, “…a republic, if you can keep it.”
The inmates have taken over the asylum.
Well, this is a bunch of crap! Once again the judiciary overrules the people! Who polls show don’t think the term is disparaging.
Squeeky Fromm
Girl Reporter
Possession of Child Pornography is illegal. Just because he doesn’t personally know the children or know the “exact” source of the filming is immaterial. He is in possession of items that he KNOWS is illegal to have or distribute.
Just like being in possession of stolen goods. If I buy what I know to have been stolen, say some guns, and I know it is illegal to possess those guns because 1) they have not been registered, 2) the serial numbers may be filed off or 3) they are registered to someone else (the legal owner)….it doesn’t matter if I don’t know who the guns belonged to or where they came from or how the guns came to be stolen. They are illegal and I would be prosecuted because I knowingly bought, possess, obtained something of which II should not be in possession.
Our Bill of Rights were designed primarily to “restrain” government authority at the local, state and federal levels. The most important constitutional amendment, listed first, is no exception.
Comedian George Carlin created a landmark U.S. Supreme Court ruling (FCC v. Pacifica Foundation) with his forbidden words. This is an even more radical interpretation involving First Amendment injury as a basis for legal standing.
In a constitutional rule of law system, the government simply doesn’t have this authority at the local, state or federal levels.
Political correctness run amok, they should be named the Washington Blanks, then they could have the New York Blanks, the Chicago Blanks and so on, that way no one should be offended
Will the state of Oklahoma be required to change its name since it translates as “Red People”?
Absurd ruling. The term isn’t used as a disparagement, virtually every usage is in reference to the team. Nor was it historically a general disparagement as demonstrated by (1) the term was developed by American Indians themselves, and (2) historical polls showed American Indians did not understand it as a slur [an unimaginable fact if it had been a general insult].
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.
Not that I want to initiate a race war here, but BET has always struck me as offensive, and I wonder how Judge Gerald Bruce Lee would resolve a challenge to Black Entertainment Television, LLC’s protected trademark? Are we creating exceptions as moral reparations?
https://trademarks.justia.com/737/08/bet-73708949.html
Jus’ sayin’.
If it is not “free speech” under the First Amendment then we can go after lots of names and appendages. NAACP is one. It should be: NAAAAA or National Association of African Americans. But down the road people will reject African and we will have a new name for the race. Whitey Herzog will have to change his name. Savage Pizzeria will have to drop Savage. Harry Rectum will have to alter his last name. Fish will challenge the Marlons. Crows will challenge the Cardinals. A car company will challenge the LA Dodgers.
I know ISIS has problem with Apache AH-64 attack helicopter. Name and sound on battle field bugs them.
Chinggis already let Mongol Motorcyle Club know that ghost of Chinngis’ great great great great great great great great great great great great great great great great great great great great great great great great great great great great great great grandfather torment them forever if they not change name to Hun Motorcyle Club.
Horrible expansion of government powers ….. pile it on you pirates
Appeal to reason and logic is gone by the wayside in decisions like these. I agree, that this act is poorly drafted as its vague and subject to many interpretations.
Whether we sympathize with the impulse to remove bigotry from society or not, we have never made law that expressly authorizes the government to remove “offensive” language from public life.This decision, which will be appealed and overturned, is only a political and cultural event, not a legal one. Sure, the Redskins will lose money from it, but nothing interferes with their right to call themselves what they like. The only important issue is whether the fans will let them cave in to this abuse of power, or draw the line.
The backlash is what I fear after Obama leaves office. A demagogue, like Trump is what I have feared for some time now. Rulings like this will cause folks, who don’t give a rat’s ass about politics to say WTF? And, then they’ll get off their asses and vote. Realize, the people who don’t vote are in large part moderates. How do you think a decision like this, will cause a moderate football fan to vote in the next election? As long as that formerly uninvolved voter doesn’t vote for a demagogue, this Orwellian edict will have a positive effect.
The Feds are also trying the take the Mongols Motorcycle Club name and logo
I wonder when the atheists will go after the California Angels?
We did a story on this yesterday, and the image was this. Which the old line about how they got their name is appropriate for America — Where the Hekawi?
https://pansiesforplato.files.wordpress.com/2015/07/ftroop1.jpg
The administrative state strikes again. This should be a very easy way for anyone to determine if they are a progressive in their heart. If you support this judge’s decision then you are a progressive. Case closed.
Choosing the “rule of man” system over the constitutional “rule of law” system will harm Americans over the longterm. The executive branch agencies aren’t superior to the First Amendment in a rule of law system designed by the Framers of the Constitution.