First, the law:
- In 1946, Congress gave the Patent and Trademark Office the power to refuse trademark protection. To do so, the trademark must "[consist] of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute."
But, that's prospective, namely, to "refuse" trademark protection, for example, when making application for a trademark and its protection. In this instance, what the Office has done is to "remove" trademark protection retrospectively. Yes, that's to "refuse" after the fact of having granted protection, in effect stating "If we knew then what we know know, we'd never have extended trademark protection. Sorry, but you're out of luck given retrospective analysis."
Yet, NFL Commissioner Roger Goodell has repeatedly stated that the Redskins' name was never intended to be offensive. In a recent Wall Street Journal article, Goodell is quoted as saying: "This is...a football team that's had that name for 80 years and has presented the name in a way that it has honored Native Americans" (italics added). It would seem that if Native Americans found the name offensive or insulting, they would then have sued the franchise in an effort to ban its use. Today, aren't intentions what matter most, trumping the outcomes?
Second, the concept of equal treatment under the law:
- The Chicago Blackhawks, Central Michigan Chippewas, Florida State Seminoles, and Cleveland Indians have similar "insulting" names, yet their trademarks remain intact. Why?
- Time Magazine reports that 450 companies have trademark protection for their Native American mascots. What's going on here?
Trademarks are what's called "intellectual property" owned by the trademark's holder(s). While the Patent and Trademark Office may have intentionally targeted this franchise and at this time for reasons that can be construed to be in accord with the 1946 law, it's more likey this finding is responding to a political climate in which the claim of "feeling offended" provides sufficient grounds for the government to seize property rights it has already granted.
What the judicial panel at the Patent and Trademark Office has done is to validate the selective seizure of the ownership of a trademark simply because these bureaucrats have determined that it's "offensive." It may be and people can reasonably disagree about whether that's true or is yet another example of cowtowing to the stormy petrils of politically correct speech. What people cannot disagree about is that the panel has established that it possesses the power to waive a property right after the fact simply because it has decided that the use of the property right is offensive.
In the end, this decades-old kerfuffel isn't about the Washington Redskins' trademark. No, it's about the Constitution. In the United States, the judicial branch of government determines whether a law has been violated and, if so, to provide redress. Hopefully, the NFL and Washington Redskins will appeal the decision in a court of law where the facts and the law trump feelings and attitudes.
As a life-long Chicago Cubs and Bears fan, The Motley Monk wonders whether species of native American bears--matters not whether they're young or old--feel offended?
Let the discussion begin...
To read the Wall Street Journal article, click on the following link:
"U.S. Patent Office Cancels Washington Redskins Trademarks."