OT: USPTO cancels six trademarks for the Washington Redskins EDITED
The USPTO has cancelled six of the trademarks belonging to the Washington Redskins on the ground that the registrations were obtained contrary to Section 2(a), 15 U.S.C. § 1052(a), which prohibits registration of marks that may disparage persons or bring them into contempt or disrepute.
[Obviously, this will put Dan Snyder and the NFL in an interesting position since it is very difficult to promote a brand lacking vital intellectual property protections. Not sure that the NFL minds this decision, though, since the USPTO has essentially taken the decision of whether to force Snyder to change the team name out of Snyder's hands. To the people who wanted to keep the team name, the USPTO, and not the NFL, is now the "bad guy".] EDIT: This is all wrong according to a dog with a Michigan football hat who claims to be a lawyer, since this decision wouldn't really prevent the Redskins from protecting their name/logo/etc under other Federal/State laws.
Opinion here: http://ttabvue.uspto.gov/ttabvue/v?pno=92046185&pty=CAN&eno=199
I was not expecting that. For people following this, how surprising is this move by USPTO?
This action is very surprising, although its genesis could have political roots.
If my memory is correct, this same issue had been raised previously before the trademark section of the USPTO and the marks were allowed to stand.
A similar suit had been brought before the Trademark Trial and Appeal Board and was ultimately dismissed on the grounds of laches. Specifically, the court found that the plaintiffs in the earlier case had waited too long after reaching the age of majority before initiating suit.
The current ruling was made in a case brought by a plaintiff who brought suit shortly after reaching the age of majority.
Not surprising at all. The USPTO (TTAB) did the same thing in 1999; the Redskins won on appeal in 2005/2008; and the Supreme Court denied cert. in 2009.
Since the moment the Supreme Court denied cert., the Cancel Redskins crowd has been publicly planning another attempt to have the marks cancelled. Today they achieved the first step in that process.
It's not suprising. The Board ordered the registrations cancelled due to disparagement over a decade ago before being overturned on alternate grounds.
Are you an IP attorney? If so, please explain why the arguments that were presented when the mark was previously challenged on appeal would not be relevant now
Not an IP attorney, but the previous ruling was thrown out on a statute of limitations technicality, the gist of which was that some of the plaintiffs had waited too long after turning 18 to file the suit.
Well without getting into the lengthy procedural history, it has to do with an equitable legal defense called "laches," which bars plaintiffs from asserting a legal claim if they have unduly delayed, and that delay has caused prejudice to the other dewd. Simply put, laches was a bigger problem for plaintiffs in the Harlo case than it is here, at least according to the USPTO.
The arguments the Redskins presented when the mark was previously challenged on appeal will not be relevant today.
The USPTO (specifically the TTAB [Trademark Trial and Appeal Board]) cancelled the Washington Redskins’ trademarks before, in 1999. However, the Redskins (specifically the entity owning the Redskins franchise, Pro-Football, Inc.), TOGETHER WITH THE NFL, successfully appealed that ruling.
It went like this. First the D.C. Circuit Court of Appeals ruled that the doctrine of laches applies to cases of trademark cancellation for disparagement. Laches is a defense which prevents plaintiffs from suing when they’ve waited too long to do so. (Laches is not a statute of limitations [which as its name implies is a statutory defense, and under the trademark statute is unavailable to defendants in trademark cancellations], but an equitable remedy used to protect defendants from lawsuits when plaintiffs could have sued much earlier. It is also not a procedural “technicality,” as some have suggested; it is a fundamental principle of equity. Laches is available regardless of whether a statute of limitations exists. It’s the idea that, hey—if you haven’t sued in the last 20 years, why should we believe you that you are so hurt by defendant now? Get out of this court!)
Second, the D.C. Circuit Court of Appeals ruled that while the defense of laches applies to cases of trademark cancellation for disparagement in general, and though this prevented all but one plaintiff from bringing suit against the Redskins, the laches defense could not prevent the youngest plaintiff from suing. This was because the youngest plaintiff had attained the age of majority (when you can bring a suit in your own name, among other things) far more recently than the other, older, defendants. In essence the court said, the youngest plaintiff was not delinquent in bringing suit—so he can proceed.
Third, the Circuit Court of Appeals remanded the case to the District Court, so the youngest plaintiff could proceed with his case against the Redskins trademark.
For details on the foregoing, seePro-Football, Inc. v. Harjo, 415 F.3d 44 (D.C. Cir. 2005).
After remand, the District Court found that laches also applied to the youngest defendant—because he had waited to bring suit a full eight years after reaching the age of majority. That happened in 2009. So at that stage, the suit was over, and the Redskins (and the NFL, who was down for the trademark struggle last time around) kept their trademarks in spite of the USPTO’s original ruling of cancellation.
So you can see what the game is now: Find yourselves some young Native American plaintiffs! And that is exactly what has happened. This time around, plaintiffs have been carefully selected. This time around, the Redskins (i.e., Pro-Football, Inc.) will not have the defense of laches. This time we will get to hear the case argued on its merits. Given current political pressure cooker, and the proximity of the D.C. District and Circuits to federal pressure-makers, I don’t foresee any way the Redskins keep their marks this time around.
This message is brought to you by The University of Michigan Law School, J.D. 2007. My practice is exclusively intellectual property law.
The Harjo case in 1999 was before D.C. district and circuit courts, as opposed to the Court of Appeals for the Federal Circuit. The Federal Circuit I think has interpreted the disparagement clause of the trademark statute only once I believe (might be wrong), but very recently... last month, they upheld the PTO's denial of trademark for "STOP THE ISLAMISATION OF AMERICA."
-IP attorney
Link to a summary by a legal blog, but it's simplified so I assume that it should be easy for anyone to understand.
http://abovethelaw.com/2014/06/patent-office-just-tomahawk-chopped-the-redskins-trademark/
Quick copy and paste summary for those who don't want to click the link to read.
"The USTPO applied a two-prong test to figure out if the marks were disparaging:
"a. What is the meaning of the matter in question, as it appears in the marks and as those marks are used in connection with the goods and services identified in the registrations?
b. Is the meaning of the marks one that may disparage Native Americans?"
The office easily concluded that “Redskin” was meant to mean “Native American” as the Washington Football team uses it. Putting an actual Native American on the helmet and having the band dance around like “wild injuns” in a Mark Twain novel probably sealed the deal on that.
The second prong is where the heart of the matter is:
"The question is only as to the second prong, whether the term is disparaging… In other words, respondent’s alleged honorable intent and manner of use of the term do not contribute to the determination of whether a substantial composite of the referenced group found REDSKINS to be a disparaging term in the context of respondent’s services during the time period 1967-1990, because the services have not removed the Native American meaning from the term and intent does not affect the second prong. If ti is found to be disparaging during the relevant time period, then the Trademark Act mandates removal from the register."
Ballgame. Once the office determines that the alleged “honorable intent” of Washington Football Club is irrelevant, then all it has to do is find that “redskin” is in fact offensive to Native Americans. And while the decision is 177 pages long, you shouldn’t need a bunch of expert testimony to figure that out. You could just listen to old-school Chris Rock, who once said “The Washington Redskins, that’s not nice. That’s a racial slur. That’s like having a basketball team named the New York Niggas.”
Rock cracked that joke in 1990, folks. A Quinn Emanuel associate made the case in 2009. Redskins has been obviously offensive for quite some time."
But the USPTO's determination (specifically, the TTAB's determination) is only a first step, made by an independent administrative agency. Now the Redskins will take their argument on appeal to the courts, where last time around they won handily. This will drag on for years.
The Redskins will get a much fairer shake in court than before an administrative agency. But this time they will lose the appeal. Bank it.
That's one thing I won't bank. I think it's more likely that this is overturned on appeal.
Not surprising at all. The USPTO (TTAB) did the same thing in 1999; the Redskins won on appeal in 2005/2008; and the Supreme Court denied cert. in 2009.
Since the moment the Supreme Court denied cert., the Cancel Redskins crowd has been publicly planning another attempt to have the marks cancelled. Today they achieved the first step in that process.
There's a patent for taking pictures of things in front of white backgrounds? Isn't that something everyone does?
Yes, they were granted a patent for this about a month or two ago. The had been persuing this patent for a while and their lawyers finally won. To be honest, there's techincal stuff that makes it feasible for others to get around the patent, as it it has to be a 'seemless white background', produced from two light sources at different levels...but yeah, it's kind of fucking ridiculous they got that patent. Amazon said they aren't going to ruthlessly enforce it, but I don't believe that. That said, they're probably not going to break down your door for putting your old bike on Craigslist.
it's pronounced bad-gee. it's french
Could the Cleveland Indians Chief Wahoo be next?
If it means that guy will stop beating his damn drum, then I hope so.
the FSU Seminoles, ND Irish (Disparagement of Irish immigrants by French Priests), MSU Spartans (Greek disparagement), USC Trojans (Persian Disparagement), NY Yankees (Disparagement of Northern Aggressors), Mississippi Rebels, New England Patriots, MA Minutemen, SF Forty-Niners, SF Giants, San Diego Padres (serious catholic Disparagement)
I mean if Eastern Michigan had to change their mascot, shouldn't the above as well?
Calling people "Patriots" and "49ers" is exactly the same as calling them "Redskins."
Good point.
All groups of people I've listed have unique qualities (and names) that each of the respective organizations honor and respect. Not my problem that you find one offensive and not another, but that just shows your own brand of bigotry, does it not?
Texas, ladies and gentlemen.
Seriously? You note the TX in my moniker and draw bigoted inferences? Is that it? Hippocrate be thy name? You don't know the first thing about me nor engage in conversation, but you've got it all figured out because of two letters.
The comment was idiotic, but I'm so damn sick of comments like this that demean Texans/Southerners. It's like Northerners and coastal elites feel they have a right to condescendingly pat the heads of the silly, backwards Southerners who happen to hold different views than them and say, "Don't worry, some day you'll be on the right side of things like us."
... but, Hornets is probably from Charlotte!
you mean like the term Ypsituckey?
I live in Ypsilanti and have roots in Kentucky like a lot of people whose families moved to SE MI for the auto industry. That's not condescending.
What is condescending is people constantly mocking Southerners for their views on things. The idiotic phrase "the wrong side of history" is invariably invoked, even though it’s nothing more than a moralistic wish masquerading as metaphysical principle. That phrase is what people say to assure themselves that there is ultimate approbation for their preferences.
That being said, I think "Redskins" is self-evidently racist.
It's pretty fucking silly and backwards.
Lots of super nice people though. Bless their silly and backwards little hearts.
EDIT: I should make clear, though, you should have to be from there to make fun of it. For everyone else, Don't Mess With Texas still applies. Kinda like how if you want to tell Jewish jokes with impunity, you should make like Dr. Tim Whatley, DDS and convert to Judaism. Our humor is what has sustained us as a people, Jerry.
If a large chunk of Texas/southerners weren't constantly trying to prevent the rest of the country from moving into the 21st century and/or incessantly bemoaning the fact that things were so much better back before they lost the Civil War (sorry, "War of Northern Aggression"), you probably wouldn't hear so many comments about them.
I hear you, but I take issue with the all-too prevalent idea that the latest sign of "Progress" is on "the right side of History". For instance, if you had asked Hernan Cortes whether the ease with which his army routed the mighty Aztec nation put him on the right side of History, what do you think he would have said? If you had caught Robespierre’s ear between executions and asked whether he was on the right side of History, what do you think he would have said?
We're tolerant, as long as we don't think you are different than us.
"Black People" == The N Word
- Nobody ever
"I always saw the term Redskin as being more descriptive than offensive."
Out of curiousity, why?
answered that in the very next sentence.
Does that question really even have to be asked? The name "redskin", is by its very nature descriptive. Sure, some may find it offensive, but that's another issue.
Speaking of 'Black and White,' this isn't really a gray area. "Braves" or "Chiefs" are in a grey area; you can argue for the relative merits of offensiveness vs. honoring a heritage.
"Redskins" isn't in that category.
1. White: never a slur.
2. Black: never a slur. Some people prefer African-American, but that doesn't make "black" a slur.
3. Redskin: Often a slur, especially when used by non-Indians.
We live in a culture, and we have a history. Words - all words - have been used (and not used) in certain ways. You might use the word "white" as an insult, but you'd be relatively alone in our history to do so. A non-Indian using the term "Redskin" as an insult, on the other hand, would be far from alone.
Another way to look at it: Words lack inherent meaning. If we all (or at least most people) start using "car" to mean "baboon asshole" and stop using it to mean "automobile," then it means "baboon asshole." If, on the other hand, only you start using "car" to mean "baboon asshole," then people aren't going to be offended if you call them a "car," because the term will carry no understood meaning that is offensive (since only you use it to mean "baboon asshole").
Another thought: American Indians (not universally - but many) are offended by the term "Redskin." I've never met a white person who is offended by the term "white."
"How is identifying one group of people by their skin any more or less offensive than labeling any other group by the color of their skins? "
Historical connotation is everything. The term "white" and the term "nigger" are both references to the color of someone's skin. Would you claim that those two descriptions are equally offensive?
But why?
None of those names are as disparaging as being called a buckeye...
There is a subjective component to this, sure. But the USPTO looks at the relatively objective interpretation of the mark, and HOLY BALLS THEIR NAME IS THE GODDAMN REDSKINS.
If your argument is REALLY that I'm a bigot for referring to people who participated in the gold rush as "49ers," I'm willing to take my chances in the court of public opinion.
because you treat people different based upon color of skin and their cultural backgrounds.