During the three great days I spent at the California Bar Solo and Small Firm Summit in Newport Beach, I was a little out of touch with what was going on in the world, save for the World Cup.But, one evening I was able to see some reactions to the ruling made by the panel of administrative judges at the US Patent and Trademark Office. Reactions I read ran from those praising the decision to those who saw it as an example of government tyranny. While opinions can differ for many reasons, I repeatedly saw that no matter the position, the basis for it was woefully lacking in understanding of the law and the facts. I decided to read the actual legal decision. So, in the interest of helping people form their opinions based upon a better base of knowledge, let us look at what people are getting wrong about this.
1. What you said: The government is forcing the Washington Football team to change its’ name!
Why you are wrong: There is nothing in the ruling that states the team must change its’ name or its’ logo. The decision, made in a very narrow fashion, merely ended the trademark protection. In other words, the Washington Football Team ( “WFT”) can still use the formerly trademarked ‘Redskins’ name with all its famous markings, but now so could anyone else. And there is little to nothing the WFT can do to stop them. Counterfeit merchandising could explode and the WFT could scream “WTF?” to no avail. Right now, the ruling is stayed while the matter is under appeal, so there is no immediate change.
2. What you said: This is a political power play and an overreaching of government power.
Why you are wrong: Skipping over the fact that such statements say far more about the political leanings of the speaker than the merits of the case, this was a narrow question answered in a narrow fashion. The patent office asked the court whether five trademarks granted to the Washington Redskins between 1967 and 1990 violated the Lanham Act 15 U.S.C. 1051 et.seq. This 1946 law covering trademarks contains provisions prohibiting trademarks that “may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs.” It also prevents the registration of “scandalous or immoral trademarks”. This was the only issue before the administrative court. In other words, the Trademark and Patent Office empowered by Congress, through Congress’ powers under the Commerce Clause of the United States Constitution, to make such determinations.
3. What you said: It is not even clear if Redskins is a disparaging name. I do not see what is so offensive about it.
Why you are wrong: For starters, almost everyone who makes that statement is white or one of those Native Americans whom no one knows is Native American until he mentions it. In essence, not really the best judges of what someone else finds disparaging about what is said about a group they belong to. That is not so much a legal opinion, that is just pointing out what should be a simple and self-evident conclusion.
4. What you said: This is just political correctness. Just because some people are offended today that does not mean we can apply that standard to those days of long ago.
Why you are wrong: You are wrong in thinking that today’s population and sensitivity were the main considerations of the court. In determining what counts as “disparaging”, the administrative judges, both in the majority and the dissent, decided that the relevant time period is the period during which the trademarks were handed out, namely 1967-1990. The administrative court’s analysis is upon whether or not “redskin” was a disparaging term during that period.In other words, even if every Native American today saw the word as disparaging, it would not matter. Only the meaning of the word and its disparaging impact at the time of registration filing would matter. And, as hard as it is to believe for some, there was ample evidence that the term “redskin” was disparaging at the time of application and registration
5. What you said: I think most Native Americans do not care so the government should not care either.
Why you were wrong: The standard is not every Native American or even most. The standard is a “substantial composite” of the allegedly disparaged group. The National Congress of American Indians (“NCAI”), listed as the oldest Native American organization composed of tribes from across the United States and structured in a manner to represent the collective opinion of its membership, has repeatedly objected The NCAI represented “approximately 30% of Native Americans” from the 1970s through the 1990s and repeatedly objected to the term “redskins” during this time. That makes a substantial composite.
NEXT SEGMENT: The other things you got wrong about the Redskins trademark decision and the 1 thing you got right.