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. And their myth stories go back to the creation of the Earth

    That is why they are called myths

  2. DBQ: Interesting, thanks! I had one of those commercial DNA tests run recently. Granted, it doesn’t go back to pre-history, haha, but it did reveal a few surprising results.

  3. “There’s no such thing as a “native american.”

    @ Tin Ear

    I am quite aware of that and it is why I didn’t capitalize the term. I was an Anthropology major in college with a concentration of study in Meso American Archaeology.

    The current groups are not even “First Peoples” since there were many other much older migrations that preceded their current cultures. I’m talking 10 to 20 to even 40 thousand years ago. The “first” people are long dead and absorbed into other sub cultures and DNA lines. Look up Kennewick Man, read the theories about the last Ice Age Maximum migration of man from Europe….the Solutrean Hypothesis. Much of the evidence of this is now under the ocean due to the rising shoreline from the massive ice sheets that once covered the earth. Across Atlantic Ice is one book. (tedious but interesting to me)

    If you get down to it, no one can really claim native status or “first personhood” because humanity has moved all over the globe and has conquered, decimated, absorbed, intermarried with the preceding peoples and even with the various subspecies of humanity……(Neanderthals, Denisovans for example,) Possibly the Australian Aborigines, could claim first dibbs on the Australian continent as it seems to have been vacant of human inhabitants when they arrived, but they also were the results of humanities, migration pattern of move, conquer and absorb.

    Don’t get me started on this anthro stuff 😀

    1. DBQ – several of the tribes in the Southwest have names that mean The People in their language. And their myth stories go back to the creation of the Earth.

  4. DBQ: There’s no such thing as a “native american.” That’s just a nonsense P.C. term coined in the sixties for an ethnic group that DNA has proven as originating in Mongolia and migrating across the ice bridge from Siberia into Canada and the Americas. In Canada they are called “First Peoples” which is an accurate term that should be adopted here.

  5. One major weakness in our system of government is the amount of time it takes to check an unconstitutional action. This current administration has pummeled our system time and again with executive orders and public policy decisions that nudge our culture away from traditional American values. By the time they wind their way through the courts and get reversed, the damage has already been done. Fortunately we still have constitutionalists in the Judiciary willing to uphold the rule of law.

  6. What is deemed to be offensive is not up to a self selected group of bureaucratic officials. It isn’t their business.

    The people can decide for themselves and refuse to patronize an organization or a place that they think is offensive. Even the people can’t ‘force’ the removal of the name. They can ask. They can’t force. If it becomes a wide spread social anathema to use certain words, then they will eventually fall out of favor and become historical oddities. That’s how it works, the people choose, not some uptight granny pantie Depends wearing cubicle slug.

    Even many native american groups have stated that they are not offended by the Redskins team name or by the logo. If anyone has a moral authority, to ASK, in this it would be them. Just as it is in The Slants.

  7. BarkinDog -> Does this mean you will agree that our attorney general’s name Lynch is offensive and force her to change it also? lol

  8. If the Washington team would merely divide the name into two names then they are off the hook. It needs an apostophe. Red’s Kin. The owner had the first nickname “Red”. The boys on the field are all kin.
    A duck is a duck. A guinea is a guinea but kin folks ass is good as any. Put that in your pipe and smoke it.

  9. This PC fascism is a horrible blight on the nation.

    The people who made that U.S. Patent and Trademark Office decision should be fired.
    But they won’t.

    Not everyone can afford to sue like this.
    Government bureaucrats are untouchable. They make horrible decisions, even ones that are unconstitutional, and get away with it.

  10. Great news for us who know free speech is the cornerstone of our democracy. And, this is a blow to the Obama Administration that has acted like a fascist govt. for 7 years. Not a Hitler fascist, a Franco fascist.

  11. I think Congress needs to outlaw the use of the word “friggin”. Friggin Mexican, Friggin Muslim, Friggin Trumpster. We hear it all the time on the streets around here. The statute should be called the Say What You Mean and Be Mean With What You Say But Be Precise Statute.

  12. Go back to India! Or Indiana! Both are disparaged by mean names. It is time to ban “Hoosier”. I know, its on their license plates and whatnot but others demean Indiana people by calling low life people with dirty lawns and houses “hoosiers”. Can someone from Indiana, not India, chime in here.

  13. Asians in America are a “vulnerable community?” Not at all! Income and education levels among Asian Americans are, on average, higher than whites. Other than that inaccurate and condescending statement by Judge Kimberly Moore, I agree with the opinion.

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