The Fightin’ IP Attorneys?

Adam Raymond explains what has Washington sports fans riled up this morning:

Eight years after a group of Native Americans filed a lawsuit seeking to repeal the Washington Redskins trademark, the U.S. Patent and Trademark Office has done just that. The team’s name, the ruling says, is “disparaging to Native Americans” and trademarks that “disparage” or engender “contempt or disrepute” are prohibited by federal law.

The ruling doesn’t require the Redskins to change their name, but if it’s upheld after the inevitable appeals, the team may decide to do so anyway since its name will no longer be protected. If anything, the ruling should settle the debate over whether redskin is a slur or an honorific.

Jay Caspian King praises the decision:

As part of their appeal, the respondents argued that “Redskins,” as it referred to the football team, had been stripped of its associations with Native Americans – never mind the cartoon warrior on the team’s helmets and the headdresses worn by fans. Such disingenuous, purely linguistic claims have been used throughout history to justify all manner of terror; to argue that the name of the football team had shed its historical associations relies upon a terrible logic that says that, because a group of peoples has been, over centuries, killed, brutally dispossessed, and internally exiled – to the point that they are invisible to many of the residents of Washington, D.C. – their history should be trumped by the history of a football team.

Alyssa is also hoping for a name change:

I would not be surprised if [owner Dan] Snyder stands his ground anyway, after years of gleefully tweaking anyone who has issued a basic appeal to courtesy or financial common sense. But if he decides to change the name of his team, Snyder could seize an opportunity not just to reinforce his financial position, but to make a real gesture towards strengthening the franchise’s relationship with the city where it is located.

In contrast, Robert Tracinski is disturbed by the move:

Our system of government depends on the impartial administration of the laws by the executive. In this case, executive officials declared that a private company doesn’t deserve the protection of the law: if the ruling survives an appeal in the courts, the federal government will stop prosecuting violations of the team’s intellectual property rights, potentially costing it millions of dollars.

This ruling isn’t a slippery slope. It’s a slope we’ve already slid down: bureaucrats in Washington are now empowered to make subjective decrees about what is offensive and what will be tolerated, based on pressure from a small clique of Washington insiders. Anyone who runs afoul of these decrees, anyone branded as regressive and politically incorrect, is declared outside the protection of the federal government.

Kavitha Davidson considers the legal precedent:

Under trademark law, the [Patent and Trademark Office] reserves the right to reject an application if it “consists 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.” The office has exercised this clause many times, rejecting an application for “Khoran” liquor, since alcohol is considered sinful in the Islamic holy book. Basically any application involving the N-word is rejected, including Damon Wayans’s attempt to trademark his clothing line, “Nigga.” And a skiing equipment company was turned away from using the term “squaw.”

Joseph Stromberg looks ahead:

Today’s decision is an important victory for [plaintiff Amanda] Blackhorse and the plaintiffs, but it doesn’t guarantee that the team will actually lose the trademark registrations. For one, the team will almost certainly appeal the decision in federal court. … In the meantime, the team will keep full protection of its name and logo.

But Jordan Weissmann argues that losing the appeal wouldn’t hurt the team too much financially anyway:

[I]n the worst of all possible worlds for the NFL, a few companies might be able to start producing Washington apparel without any logos or player names. Irritating? Yes. Disastrous? Probably not.

Then there’s the question of who would actually want to go into that business. As of now, the companies that want to produce pro-football-branded merchandise have to negotiate with the NFL for a collective license that covers all of the teams. (That could change, however, depending on the outcome of a pending court case.) Any corporation that decided to go rogue and start selling unlicensed Washington gear would undoubtedly incite the NFL’s wrath. That might be fine for the odd guy with a stand selling T-shirts on the corner, but not, say, Nike.

For much more on this debate and mascot controversies in general, check out the Dish thread.