‘Look! Squirrel!’ Redskins Controversy: Does Trademark Law Violate First Amendment?

Supreme Court Affirmitive Action

Regulatory adventurism–an arm of government being misused for a political, narrow, misguided agenda–naturally raises legal questions. Can you imagine so much effort on the part of a tyrannical minority of activists about a ruling that most Americans, and most native Americans think is a pointless solution to an imaginary problem?

For Brietbart.com, Ken Kuklowski writes:

Yesterday’s decision from the Patent and Trademark Office (PTO) to cancel the trademark protections of the Washington Redskins professional football team, ruling that the word “redskins” is disparaging to Americans descended from indigenous people instead of immigrants, has sparked an energetic conversation raising serious legal and constitutional issues.

“To be clear: the federal government is not banning anyone from using the term ‘redskins.’”

Trademark law permits PTO to reject trademark protection to terms that PTO finds disparaging. Specifically, PTO may deny trademark registration under 15 U.S.C. § 1052 when a term, “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.”

“…Instead, PTO is saying they no longer have the right to use the term exclusively to retain all financial benefits from its use.”

Lawyers for the Redskins argued that the trademark is (1) old and (2) well used, and (3) has tremendous financial value as a brand name. And one judge on the Trademark Trial and Appeal Board dissented from the decision to revoke the Redskins’ longstanding trademark protection.

To be clear: the federal government is not banning anyone from using the term “redskins.” Instead, PTO is saying they no longer have the right to use the term exclusively to retain all financial benefits from its use.

But whether pure censorship or financially detrimental, the restrictions in the statute very quickly give rise to serious First Amendment questions.

“Can you say “Indian?” Or is assigning the term “American Indian” to formerly-indigenous people likewise disparaging to Americans whose ancestors came here from India, since those are the literal “Indians” to begin with?”

In an age of increased political correctness, how many descriptive terms run no risk of someone alleging disparagement? What of the Cleveland Indians?…(read more)

Brietbart.com

Ken Klukowski is senior legal analyst for Breitbart News and a fellow with the American Civil Rights Union. Follow him on Twitter @kenklukowski.

 


One Comment on “‘Look! Squirrel!’ Redskins Controversy: Does Trademark Law Violate First Amendment?”

  1. […] By Pundit from another Planet Regulatory adventurism–an arm of government being misused for a political, narrow, misguided agenda–naturally raises legal questions. Can you imagine so much effort on the part of a tyrannical minority of activists about a ruling that most Americans, and most native Americans think is a pointless solution to an imaginary problem? For Brietbart.com, Ken Kuklowski writes: Yesterday’s decision […] Like this? Read more and get your own subscription at […]


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