Patterico's Pontifications


Patent Office’s Rejection of Redskins Trademark Violates First Amendment

Filed under: General — Patterico @ 6:36 pm

As I said this morning, the Patent Office’s decision to invalidate the Redskins trademarks is an unconstitutional violation of free speech. Here’s more about that.

First, let’s hear from First Amendment expert Eugene Volokh from this morning, quoting an earlier post of his from May of this year, regarding the idea of “disparagement” as a justification for revoking a trademark:

My tentative view is that the general exclusion of marks that disparage persons, institutions, beliefs, or national symbols should be seen as unconstitutional. Trademark registration, I think, is a government benefit program open to a wide array of speakers with little quality judgment. Like other such programs (such as broadly available funding programs, tax exemptions, or access to government property), it should be seen as a form of “limited public forum,” in which the government may impose content-based limits but not viewpoint-based ones. An exclusion of marks that disparage groups while allowing marks that praise those groups strikes me as viewpoint discrimination. But I’m not sure that courts will ultimately see this my way; so far they haven’t been inclined to do so, precisely because the exclusion of a mark from federal registration leaves people entirely free to use the mark.

Volokh links to today’s decision itself, which has absolutely no analysis of the First Amendment issues involved, but simply sets out to determine whether the trademark disparaged native Americans when the registrations issued. The majority says yay, the dissent says nay. But none of this is the real issue. The real issue is whether the Patent Office has the authority to invalidate a registration based upon a viewpoint restriction such as one against “disparagement” of a group.

The previous case that spurred Eugene’s initial opinion on the issue was a Federal Circuit case in which the court found that the “Stop the Islamization of America” trademark was disparaging to Muslims. That case, like today’s Patent Office decision, did not consider the First Amendment at all. It would seem that, if trademarks are being issued that praise Islam — and I’m sure such registrations exist, just like pro-native American registrations certainly exist — then it is a First Amendment violation to deny trademark protection to marks because they disparage those groups.

The only actual case on this issue cited by Eugene is Ritchie v. O.J. the Double Murderer (I have taken liberties with the caption), which offers up dicta (for non-lawyers: irrelevant comments regarding issues not litigated by the parties) to the effect that there is no First Amendment issue presented because the mark can still be used. As the dissent notes, though, unequal treatment regarding the issuance of government privileges, based on viewpoint discrimination, can violate the First Amendment. For example, a tax exemption may be a privilege granted by government — which government is not required to give out generally — but government cannot require you to sign a loyalty oath to claim the exemption.

I’m surprised at the apparent dearth of First Amendment challenges in this area — but then, invalidating trademarks because they are disparaging appears to happen rarely. I’m not surprised to hear that the Redskins are appealing the ruling — and I hope they win . . . and squash this precedent hard.

27 Responses to “Patent Office’s Rejection of Redskins Trademark Violates First Amendment”

  1. Ding.

    Patterico (9c670f)

  2. If Obama’s patent offices rejected the trademark, then it must be due to a good reason !!!

    Elephant Stone (6a6f37)

  3. if we had a supreme court what was at all respectable this would be an open shut case

    but we’ll just have to wait and see what our corrupt third world one says

    happyfeet (8ce051)

  4. ESPN is disgusting on this issue.

    JD (08d44e)

  5. It can be easy, or it can be hard. How fine do you want to split the hair? I’d say that copyright protection is also a government benefit program and a lot of rap songs would lose that protection for racists epithets, at the very least. And the other parallel is the registration which entitles the RIAA to statutory damages and other goodies if you don’t have a receipt for every song on you iPod. ?

    nk (dbc370)

  6. i wonder how the disney whores would feel if we deregistered the trademark on their blatantly disparaging gay little mouse

    everyone knows if you call something mickey mouse you’re saying it sucks ass, and it’s wrong to trademark such a disparaging phrase

    wrong wrong wrong

    no justice no peace

    happyfeet (8ce051)

  7. everyone knows if you call something mickey mouse you’re saying it sucks ass, and it’s wrong to trademark such a disparaging phrase

    You’re not supposed to. Disney can sue you for that.

    nk (dbc370)

  8. oh fudge

    happyfeet (8ce051)

  9. Here is matter quoted from Janet Flanner’s “Letter from Paris” in the New Yorker magazine, R.H. Fleischmann being editor (Mar. 22, 1969):

    “[Baudelaire] was also very much struck by the portraits of American redskins . . . such as that of Chief Buffalo Fat — one of those savages ‘who make me comprehend antique sculpture,’ he said of this striking redskin . . .”

    ben acton (683111)

  10. The racist snyder has a right to be a racist. He has a right to call native americans redskins at least by the government. He does not have a right to ask the federal government help support his racism with patents. Next time he goes to temple he should ask his fellow jews if they have a problem if he calls them jewskins!

    warhoop (9cdd8f)

  11. Perhaps it is time to invalidate any trademark which includes the word “Democrat” …

    “Democrat” is an offensive word to millions of citizens in this country, standing as it does for the selective cronyism and the corruption as practiced by current politicians and bureaucrats …

    What more disparaging term exists than to call a politician or a respectable citizen a “Democrat” …

    It is time for the d-word to be removed from this nation’s common parlance …

    Alastor (2e7f9f)

  12. Alastor (2e7f9f) — 6/18/2014 @ 10:54 pm

    Don’t forget it was the Democrat party that started the KKK. That sounds pretty “disparaging” to me.

    Tanny O'Haley (c0a74e)

  13. Consider the case of R.A.V. vs City of St Paul which I think a good signpost.

    St Paul could not criminalize the display of some hate symbols, even where the act was not protected speech.

    SPQR (c4e119)

  14. Yes, that’s a good case on content restrictions violating the First Amendment. Fans of the Patent Office’s decision will say: that statute proscribes the speech; here the speech is allowed but not given governmental protection.

    You still can’t treat the speech differently based on viewpoint, though, as explained in the post.

    Patterico (1daa89)

  15. I don’t consider protecting a persons intellectual or business property “governmental protection”. I consider it as society encouraging enterprise and innovation and invention. At this point what the Patent Office is saying is that even after 82 years we can overturn your ability to protect your brand if we deem it politically incorrect. That’s BS.

    And if we need “governmental protection” I suggest they begin at our boarder.

    Hoagie (4dfb34)

  16. I thought about it, too. I don’t know how trademarks are a government benefit program. They protect the public, as much as the business. You know you’re getting a genuine Apple product when you pay your $600.00, and you know not to take a 1973 Ford Pinto as a gift.

    nk (dbc370)

  17. They don’t protect the public that much when trademarks can be bought and sold.

    They might be taken over by atotally different company, with no continuity.

    Sammy Finkelman (95e288)

  18. Don’t forget it was the Democrat party that started the KKK.

    Now more than ever before (but certainly after learning about the astonishing bigotry or truly racist, behind-closed-doors comments of the most famous Democrat presidents of the 20th century, referring to Woodrow Wilson, Franklin D Roosevelt, Harry Truman and Bill Clinton), I really do think liberals/leftists like Harry Reid, who, of course, is so animated about how horrible “redskins” is for a name of an NFL team, must be examples of what’s known as projection., April 2014: [W]hy there was no outrage when Senate Majority Leader Harry Reid called President Barack Obama a “light-skinned” African American with no “negro dialect” in 2010.

    Mark (d1fb37)

  19. And Harleys are now made in China, and Snickers are now made in Mexico, and I can’t dance anymore. You know what’s changed and it’s not as good as it used to be. Loss of goodwill is as much a part of brand as accumulation of goodwill.

    nk (dbc370)

  20. And Harleys are now made in China

    Parts and accessories only.

    carlitos (c24ed5)

  21. Which parts? 😉 I won’t argue, I’m past that stage. I had a 1986 Harley. Its Keihin carburetors, the only non-American made parts, were the cause of much wailing and gnashing of teeth from Easy Riders.

    nk (dbc370)

  22. This issue with the Redskins name will only be squashed if it goes to the Supreme Court and they rule in favor of the Redskins’ trademark and against the ability of the Trademark office to police Trademarks.

    They did make a similar Patent office ruling a couple years ago. The Patent office must issue patents and any similarities can be determined in court.

    DejectedHead (a094a6)

  23. Mid-80’s HD wasn’t all the way back. God knows where those parts were from. I can’t imagine mid-80’s Easy Riders having to go to Sears to buy metric allen wrenches…

    carlitos (c24ed5)

  24. I hatt this PC nonsense. But think if it is offensive, the Redskins should look into an alternative.

    But only by choice.

    Bigger question though is has the Patent Office ever previously revoked an otherwise legbally-issued patent for being “offensive”? The precedent is terrible. It’s reeks of Big Government overreach.

    Bugg (3a2abd)

  25. They ought to move.

    Kevin M (b357ee)

  26. search results for other keywords in the Federal Trademark Registry:

    Redneck – 250 results
    Negro – 72 results (one is Uppity Negro)
    Whitey – 11 results
    La Raza – 20 results
    Bitch/Bitches – 250 results

    JeffC (488234)

  27. They don’t protect the public that much when trademarks can be bought and sold.

    They might be taken over by a totally different company, with no continuity.

    And the same company can change the formula and suddenly the product is different. But when you buy something with a trademark you are assured that it is genuinely made by the company you think it’s made by. Whether that company is under the same management, or is still maintaining the standards it did when you were a child, is a different quesiton and you have no guarantees on that. I don’t see how else it could be. Ban the use of any trademark for one product if it’s ever been used for a different one?! Police the quality of products?! That’s just not feasible.

    Milhouse (b95258)

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