Federal Court Strikes Down Federal Provision Used To Bar Trademark Protection For Redskins and Other Controversial Names

723px-US-CourtOfAppeals-FederalCircuit-Seal.svgPatentTrademarkOffice-Seal_svgI 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. One of the cases that I have discussed involves an Asian-American rock band called The Slants, which was also barred by the office. Now the band has won a major victory not just for itself but also the first amendment in the U.S. Court of Appeals for the Federal Circuit in Washington, D.C. The Court struck down the part of the law allowing the denial of the registration of offensive trademarks. The case, which is likely to appealed to the Supreme Court, will have a major impact on the Redskins controversy.

The Portland, Oregon-based band plays “Chinatown dance rock” and challenged the agency’s determination that it can be denied protection based on the view that they are demeaning to Asians.

Circuit Judge Kimberly Moore wrote that “[w]e recognize that invalidating this provision may lead to the wider registration of marks that offend vulnerable communities.” However, she added that “[w]hatever our personal feelings about the mark at issue here, or other disparaging marks, the First Amendment forbids government regulators to deny registration because they find the speech likely to offend others.”

I have been highly critical of this poorly crafted law. The law is reflective of a dangerous trend in our government with the rise of federal agencies. 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. This includes the expanding role of agencies in resolving political and social controversies.

The case is In Re Simon Shiao Tam, U.S. Court of Appeals for the Federal Circuit, No. 14-1203.

Here is the opinion: In Re Simon Shiao Tam

37 thoughts on “Federal Court Strikes Down Federal Provision Used To Bar Trademark Protection For Redskins and Other Controversial Names”

  1. The Orangemen– now that is calling Ulster Scots bigots I think. Just as bad as the “Fighting Irish.” I mean that little leprechaun has a ruddy face and it means he is drunk! Are they saying Irish are drunks, too? This is OUTRAGEOUS! Call the PTO.

    Indiana DOES need to renamed. Btw Hoosiers is an antiwhite slander too. It means redneck, kind of like sooners, etc. Can we call it “Europiana” now since it was taken from Indians by European invaders whose descendants are now being outnumbered in the demographic race by Mexican-mestizo invaders. Who may one day take over the state and rhapsodize about Hoosiers like Hoosiers rhapsodized about the valiant struggle of Tecumseh against the white invaders, mutatis mutandis! If only whites had a chief like him to take some scalps, UGH!

    Nothing against Tecumseh, or Irishmen, Orangemen, Mestizos, rednecks, etc. folks I am a HUGE multiculturalist these days, we all be EKWALZ even if some animals are more equal than others!

  2. A red Irish Setter is not an Indian. A chocolate lab can look red but is not an Indian. Four legs good, two legs baaaad!

  3. No human has the right to claim title to some name such as Redskin. RSM. Red Skins Matter. I got burned out in the sun last week and I can vouch for this statement. Further, no so called “Indian” tribe in America has red skin. Unless they are sun burnt. Sunburnt Lives Matter.

  4. My Irish neighbor said he is suing Notre Dame for stereotyping the Irish as “fighters,” but he was drunk at the time so who knows……

  5. The baseball Cardinals had a threat from some Catholic Cardinal for tradename violation. The Redbirds said turnabout is fair play and said they were going to go to court to deny the Cardinal the right to wear a red beanie. The case was settled out of court. The Cardinal will go to the opening game and throw out the first broad.

  6. Tinear: If you lose your eyesight you might allow the dog to use the credit card. Or to assist. Same with voting. Vote Democrat. Early and often.

  7. I’m offended by the name Saramento. I’ve been there, and it definitely cannot be considered a sacrament! I suggest that the name be changed to Sacrilege, to more accurately reflect what goes on in the California legislature.

  8. (music)
    My gene’s older than your gene!
    My gene’s older than yours!
    My gene’s older cause it was bolder and my gene’s older than yours!
    Kennell Ration has real good meat.
    And lots of other things too.
    When my dog goes to the store..
    He buys a hundred cans or more!

  9. Jim C……….I now take “Idaho-free” drives between Walla Walla and Phoenix. Nothing against Idaho people, but I fear that Idaho law enforcement has lost their marbles after the legalization of recreational pot in neighboring states.
    The 2 “Darien Roseen Welcomes” I got within c.25 miles of crossing into Idaho convinced me to detour around that state. I don’t think Mr. Roseen is too crazy about returning to Idaho after his experience; he wasn’t in Idaho more than 45 seconds before the Trooper tore out after him.

  10. I feel so unsafe when strangers call me potato-head due to my Idaho roots. I’m made of meat, not carbohydrate, and it utterly demeans and devastates my fragile, vulnerable psyche….

  11. “The name you submitted for TM protection makes some persons feel hurt, unloved, and unlovable. Your potential TM name already caused suicide and genocide. We must therefor deny TM protection for that evil, hateful name.”

    /sarc off

    I remember an Asian co-worker (now in his late 60s) on the receiving end of Affirmative Action benefits. He was handed two or three otherwise unearned promotions. By the time of his future passing I estimate the financial benefits shall total well over $1M.

    The “horrible injustice” he experienced growing up in San Francisco: His Asian father/Pharmacist was barred from purchasing a home in Sutro Heights (overlooking the GG Bridge, Palace of Fine Arts, Harry Houdini’s home, Robin Williams once lived there, etc.), where I estimate average current home value to be $30M+ (relative’s 2BR Wharf condo value $2M).

    Suppose current legal liabilities held sway in 1492 Europe. What would have been the first year European explorers arrived on our shores? What year would those “conquerors” have pushed Westward toward the Pacific? (Not saying it wouldn’t be better for the world, BTW.)

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