[kimura-mma]

Board strips Redskins' trademark protection due to name

But before you go printing unlicensed Redskins merchandise:
Legal Look: Cancellation of Redskins trademark

 

[Comin'OutSwingin]

I'm glad you posted the second link.

People will still bet their livelihood that they will be able to print and sell Redskins merchandise legally because of this.

 

[kimura-mma]

Very true, Greg. That's exactly why I included the second link. I thought it was a solid write-up on how the mark can still be protected and how there are still some legal hurdles before anything is really finalized. It's not like there is now a free-for-all to print unlicensed merchandise without penalty.

What will be interesting is how this affects the value of the license and how existing licensees choose to use these marks. Also, I wonder if people will boycott merchandise or manufacturers. Much has been made of wanting the team changing the name. But now maybe some pressure will be put on the merchandise side of it as well.

The name and logo are clearly insensitive. That wasn't the original intent at the time it was created, so there's no need to find fault here. But we live in a different world now and the name should be changed. It's the right thing to do. Washington Warriors with a modernized/appropriate version of the logo would be a good compromise.

 

[Viper Graphics]

The name and logo are clearly insensitive. That wasn't the original intent at the time it was created, so there's no need to find fault here. But we live in a different world now and the name should be changed. It's the right thing to do. Washington Warriors with a modernized/appropriate version of the logo would be a good compromise.

Interesting you say that since the logo was created by an American Indian tribal artist for the ball team to assure it would properly, culturally and respectfully represent the "redskins". Funny how public opinion is so magnified by the press so they can get readership regardless of the accuracy of the stories told.... one poll said 80% of Indians polled had NO problem with the name or logo. just my 2 cents......I think the logo is not insensitive for it's intended purpose.

 

[kimura-mma]

My point is... the name and logo may not have been insensitive then, but it is now. And that should matter.

Ok, 80% of Indians that participated in that poll were not offended. But 20% were. We should just ignore them? That 20% still represents enough to tell us that something is wrong.

I'm not someone who is easily offended by things like this. Names like Braves, Chiefs and Warriors are ok. But names like Redskins, Redmen and Indians have a different tone. They cross a line in my opinion.

And keep in mind, the NFL wants to penalize players for using racial slurs on the field during play. So it seems hypocritical to go to great lengths to maintain racial sensitivity to certain groups while turning a blind eye to others.

 

[ShirlandDesign]

So it's now constitutional to have a separate set of laws for distasteful folks?

 

[Comin'OutSwingin]

So it's now constitutional to have a separate set of laws for distasteful folks?

No, not at all. The USPTO has nothing to do with the constitution and/or laws.

It seems that you completely misunderstand the USPTO, laws, AND the constitution.

The USPTO is responsible for registering or denying trademarks. If a mark is deemed offensive or "distatesful" as you put it, then they don't have to grant registration.

No one is saying that it's illegal, or having a separate set of laws, or ANYTHING at all to do with the constitution.

The law allows for the USPTO to deny "distastful" marks.

 

[wormil]

Some people want to be offended; side effect of leisure time.

 

[Comin'OutSwingin]

Some people want to be offended; side effect of leisure time.

Agreed. I'm not easily offended in the least bit. I'm not offended by this.

But, there are some people that are genuinely offended. And their feelings shouldn't be cast aside just because others "want to be offended".

 

[ShirlandDesign]

If a mark is deemed offensive or "distatesful" as you put it, then they don't have to grant registration.

The Redskins were applying for a trademark? Laws are what give governments, and their agencies the power to alter peoples behavior. Laws have to be constitutional to be enacted. What we're really talking about is a retroactive penalization of corporation for poor taste.

I don't agree with Bill Maher all that often, but he was right when he said it isn't against the law to be an a$$.

One of the most famous undertakings of John Adams was his defending the rights of the unpopular. This is best put by him when he said; "The law will not bend
to the wanton tempers of men. It preserves a steady, undeviating course."

Except now Our government is financially penalizing a Corporation based on their sense of good taste. If we are actually a market driven society, shouldn't that
be the job of the franchises sponsors?

So freedom of speech protects a Billionaires right to spend millions of dollars assassinating the careers of moderate politicians, but not a private company's right to have an only recently judged, off color name.

 

[Comin'OutSwingin]

The Redskins were applying for a trademark? Laws are what give governments, and their agencies the power to alter peoples behavior. Laws have to be constitutional to be enacted. What we're really talking about is a retroactive penalization of corporation for poor taste.

Yes, and no. The constitution doesn't address every law. For instance, the constitution doesn't say that it's against the law for me to go over 70mph when I'm driving.

What the constitution does do, is give my state the power to determine on its own what the max speed limit should be.

In this case, the constitution has given the Dept of Commerce the authority to let the USPTO decide what marks get registered, denied, and if it so chooses, to retroactively deny. So, the USPTO reversing its decision isn't making it constitutional to have a separate set of laws for "distasteful" folks. The constitution has given the USPTO the authority to take away registration if it sees fit.

That's the part I think you're missing.

I don't agree with Bill Maher all that often, but he was right when he said it isn't against the law to be an a$$.

Right. And I agree with that as well. The problem is that you seem to think that the USPTO taking away the Redskins registration is somehow saying that the Redskins have broken the law and are doing something illegal. No one is saying that or even implying that.

Taking away registration only means that the mark will no longer be registered by the USPTO...simple as that.

One of the most famous undertakings of John Adams was his defending the rights of the unpopular. This is best put by him when he said; "The law will not bend
to the wanton tempers of men. It preserves a steady, undeviating course."

Again, there are no laws bending or changing. The USPTO already had and has the authority to do what's doing.

Because THEY change their minds, doesn't mean that the law has changed.

Except now Our government is financially penalizing a Corporation based on their sense of good taste.

They aren't financially penalizing them. They still have the copyright to the design. And regardless of what happens with the registration, they still also have the common law trademark.

So, no matter what happens with the mark, it still can't be infringed upon.

If we are actually a market driven society, shouldn't that
be the job of the franchises sponsors?

Yeah, sure. But it's also the job of the USPTO to do it's due deligence to ensure that marks that are registered are held to a certain standard, even if that means revisited certain marks to make sure.

So freedom of speech protects a Billionaires right to spend millions of dollars assassinating the careers of moderate politicians, but not a private company's right to have an only recently judged, off color name.

Freedom of speech is different from "freedom of trademark registration".

You can't get any word, phrase, or name trademarked and try to claim freedom of speech.

The USPTO has a job to do. But it seems your biggest disconnect comes by you thinking the USPTO doesn't have the authority that the law has already given them, or thinking that the USPTO taking away a registered trademark is somehow the government saying that it can't be used.

I would encourage you to study trademark a little more so that you can form a more informed opinion on the matter.

 

[ShirlandDesign]

The constitution doesn't address every law.

No, but every law has to, at least in theory be constitutional.

What the constitution does do, is give my state the power to determine on its own what the max speed limit should be.

States rights also apply to matters of public decency.

The constitution has given the USPTO the authority to take away registration if it sees fit.

That's the part I think you're missing.

Again the law that allows the USPTO to determine public taste is held to be constitutional, as you have said previously (although I haven't verified this) the constitution probably doesn't address this issue specifically. Also I think you equate having the right, and doing whats right. I'm not arguing their power, just their use of it given their mandate.

Mission

The USPTO mission is to "maintain[] a permanent, interdisciplinary historical record of all U.S. patent applications in order to fulfill objectives outlined in the United States constitution".[5] The legal basis for the United States patent system is Article 1, Section 8, wherein the powers of Congress are defined.[6]
It states, in part:
"The Congress shall have Power...To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries". The PTO's mission is to promote "industrial and technological progress in the United States and strengthen the national economy" by:

• Administering the laws relating to patents and trademarks;
• Advising the Secretary of Commerce, the President of the United States, and the administration on patent, trademark, and copyright protection; and
• Providing advice on the trade-related aspects of intellectual property.

The problem is that you seem to think that the USPTO taking away the Redskins registration is somehow saying that the Redskins have broken the law and are doing something illegal. No one is saying that or even implying that.

No, what I in fact do think is that a government agency is exceeding their mandate to apply pressure to it's citizenry in order to enforce some bureaucrats notion of political correctness.

Again, there are no laws bending or changing. The USPTO already had and has the authority to do what's doing.

If this is true, why only the Redskins, seems a little less than even handed given how many sports teams have Native American Mascots, names and motifs.

• Atlanta Braves (MLB), originally Boston Braves, then Milwaukee Braves, plus all but one of their minor league affiliates:
  • Danville Braves
  • Gulf Coast League Braves
  • Gwinnett Braves (formerly the Richmond Braves)
  • Mississippi Braves
  • Rome Braves
• Cleveland Indians (MLB), along with one current minor league affiliate and one defunct affiliate:
  • Gulf Coast Indians
  • Kinston Indians (defunct; replaced in 2012 by the Carolina Mudcats)
• Indianapolis Indians
• Peoria Chiefs—The Peoria Chiefs no longer use indigenous imagery, instead using imagery related to firefighters.
• Spokane Indians
• Syracuse Chiefs
• Chicago Blackhawks (NHL) – Named for an World War I Infantry Division that in turn was named for Sauk leader, Black Hawk, a prominent figure in the history of Illinois. In 2008, this logo was voted best in the National Hockey League by The Hockey News.[3]
• Johnstown Chiefs (ECHL) — Named after the Charlestown Chiefs, the fictional team in the movie Slap Shot (partially shot in the real team's home city of Johnstown, Pennsylvania). Team moved and became Greenville Road Warriors in 2010.
• Frölunda Indians (Swedish Hockey League)
• Malmö Redhawks (HockeyAllsvenskan)
• Moose Jaw Warriors (WHL)
• Portland Winterhawks (WHL)
• Spokane Chiefs (WHL)
• Chilliwack Chiefs (BCHL)

etc, I got tired of draging and pasting.

They aren't financially penalizing them. They still have the copyright to the design. And regardless of what happens with the registration, they still also have the common law trademark.

So, no matter what happens with the mark, it still can't be infringed upon.

They are using the threat of financial loss to apply pressure.

Yeah, sure. But it's also the job of the USPTO to do it's due deligence to ensure that marks that are registered are held to a certain standard, even if that means revisited certain marks to make sure

Don't see it in their mission statement, but this is just a conversation for me, not a course of study.

Freedom of speech is different from "freedom of trademark registration

I think they were already registered, and if the owners intent was to convey the franchises ethos in their choice of branding, then yes it is a free speech issue as well as a free market issue.

But it seems your biggest disconnect comes by you thinking the USPTO doesn't have the authority that the law has already given them, or thinking that the USPTO taking away a registered trademark is somehow the government saying that it can't be used.

Your biggest disconnect is thinking might makes right. Again having the right and doing whats right are not the same thing. Speed traps, redistribution of wealth, allowing investment banks to write the legislation that governs them, allowing double digit profit increases quarterly for insurance companies while mandating every citizen to have medical insurance, debtors prisons, amongst many thing are apparently legal, and so then in theory constitutional. Are you O.K. with those things as well?

I would encourage you to study trademark a little more

You got that part right. Usually though I just look to kimura-mma, Tim seems to know his stuff.

 

[Comin'OutSwingin]

No, but every law has to, at least in theory be constitutional.

States rights also apply to matters of public decency.

Yes. But, you implied that there were separate laws for "distasteful". I'm only saying that the same laws are being applied. No one is creating anything new, or separate. The USPTO isn't calling saying that the Redskins broke any law, only that the USPTO is no longer going to register the mark.

That's different than having a separate law for distasteful folk.

Also I think you equate having the right, and doing whats right. I'm not arguing their power, just their use of it given their mandate.

In this particular instance I do. And here only because it doesn't keep the Redskins from using their mark.

The only question for me is "do they have the RIGHT to reverse THEIR decision to register a mark"? Yeah, they do.

Is it RIGHT for them to reverse their decision? I don't know. But, again, if they choose, and give reason, then what makes it wrong?

They can call themselves whatever they want to call themselves, but the USPTO is under no obligation to register whatever they want to call themselves.

At the very least I would encourage you to read the article in the second link Tim posted initially.

Here's a quote from it:

The ruling to cancel the trademark registrations does NOT strip the team of its trademark rights or its ability to stop unauthorized parties from using the Redskins marks.

The Redskins have acquired what are called common law trademark rights. These are trademark rights that arise by virtue of the use of the mark in the marketplace. By "use", I mean things like jersey sales and the mark appearing in TV broadcasts and online.

And here's the key: common law trademark rights are enforceable and the Redskins could rely on them to stop a third party from making unauthorized use of its marks.

The USPTO deciding that they no longer want the mark registered really has no effect whatsoever for the Redskins.

Many companies, brands, etc. survive and even thrive without a trademark registration solely because of common law trademarks.

You're acting like there's this big travesty against the Redskins, when they get to keep going with business as usual if they so choose.

No, what I in fact do think is that a government agency is exceeding their mandate to apply pressure to it's citizenry in order to enforce some bureaucrats notion of political correctness..

Again, I disagree. There have been several cases where people wanted to trademark what the USPTO considers "scandalous" words or phrases, and the courts have upheld that the USPTO has the right to deny those registrations.

So, reversing their decision isn't any different. They have the right AND the authority to do just that. The courts have said as much, so they can't be exceeding their mandate.

If this is true, why only the Redskins, seems a little less than even handed given how many sports teams have Native American Mascots, names and motifs.

Probably because the USPTO considers a mark that solely refers to skin color to be "scandalous", and none of those other registered marks refer to any skin color.

They are using the threat of financial loss to apply pressure..

Again, because of common law trademarks, they are under no threat of ANY financial loss by losing the registration.

I think they were already registered, and if the owners intent was to convey the franchises ethos in their choice of branding, then yes it is a free speech issue as well as a free market issue. .

No, it's not, because the government isn't saying that they can't call the team the Redskins. The government is ONLY saying that the government won't allow the name to be registered.

They can continue calling it whatever they want to call it. How is it a freedom of speech issue if the USPTO isn't telling them to change the name???

Your biggest disconnect is thinking might makes right. Again having the right and doing whats right are not the same thing. Speed traps, redistribution of wealth, allowing investment banks to write the legislature that governs them, allowing double digit profit increases quarterly for insurance companies while mandating every citizen to have medical insurance, debtors prisons, amongst many thing are apparently legal, and so then in theory constitutional. Are you O.K. with those things as well?

No, I don't think might makes right.

But, if I want a certain entity to recognize me, then it only makes sense that I conform to their standards of recognition. And if their standards change over time, and I no longer fit their standards, I have a choice to change or move on.

The Redskins don't have to have a registered trademark in order to keep their name. That's what I think you're missing.

 

[ShirlandDesign]

Very few threats in life are as direct as "do this or else". Usually it's more like "for a small fee we can make your union problems go away". And usually far more subtle than that. The joke around the shop for a week was "have you got the Redskins screens burned yet?" We of course know better, but I'd bet a good number of knuckle heads don't. All demurs aside, one of the biggest problems with America today is our government gaming the system they establish for us.

And I do care.

Maybe I could have put it better, and maybe your interpretation was a bit literal, but I do know what laws are for, and I do have, to an extent, an understanding of our constitutional rights. And I see our rights rapidly diminishing through laws that have no benefit to the common good, government agencies exceeding their mandate, and legislation from the bench.

By the way, I'm a voting member of the Cherokee Nation, CDIB and all. You should see the way Native American Governing bodies address the needs of their constituents. They work on things like jobs, education, housing and health. The Cherokee nation is actively courting big business, by offering tax incentives and land deals to relocate in our state. While our state government is trying to repeal Roe V Wade, redistricting to further polarize the congress, seeking stricter mandatory drug sentences, and experimenting with novel ways to execute inmates on death row. When the Indians take back the country from the fools who are in the process of pi$$ing it away, I doubt that they will spend much time worrying about the "Crackers" football franchise.

p.s. I know subtlety is lost on a lot of folks, so for the record take that last bit about the Crackers in a humorous light

 

[tippy]

If this is true, why only the Redskins, seems a little less than even handed given how many sports teams have Native American Mascots, names and motifs.

Braves, Blackhawks, Chiefs, Warriors - those aren't derogatory terms.

Adding the label 'Red Skins" is no different than using *******, Nip, ************, *** or the N-word.

 

[ShirlandDesign]

Braves, Blackhawks, Chiefs, Warriors - those aren't derogatory terms.

Adding the label 'Red Skins" is no different than using *******, Nip, ************, *** or the N-word.

All of the AIM (American Indian Movement, think Wounded Knee, Dennis Banks, Russel Means) members in college referred to themselves as "skins". I'm sure there are a lot of bitter Native Americans, I just haven't known any personally. In fact that's what I love the most about the Indians I've had as friends, they can find warmth and humor in nearly anything, including themselves.

 

[kimura-mma]

They are using the threat of financial loss to apply pressure.

What financial loss? They won't lose money by losing the trademark registration. And if they ultimately change the name, they stand to benefit financially from increased merchandise revenue.

 

[kimura-mma]

All of the AIM (American Indian Movement, think Wounded Knee, Dennis Banks, Russel Means) members in college referred to themselves as "skins". I'm sure there are a lot of bitter Native Americans, I just haven't known any personally. In fact that's what I love the most about the Indians I've had as friends, they can find warmth and humor in nearly anything, including themselves.

What is said within a circle of people can be very different than the same thing being said outside of that circle. Many African Americans refer to themselves as a derogatory term. Within that culture, it's a term of endearment or even a badge of honor. But outside that culture, it's very different. So yes, there are double standards. And it's not that hard to understand them. I don't doubt anything you have said. And I don't have a dog in this fight. It just seems like changing the name is the right thing to do. The team stands to benefit in the long run.

 

[ShirlandDesign]

What financial loss? They won't lose money by losing the trademark registration

The question is not financial loss, (people who buy knock offs and people who buy brand names at list are completely different markets).

The question is the threat of diminishing revenue by the active denial of government protection for the perceived benefit of safe guarding the public's sense of propriety.

And if they ultimately change the name, they stand to benefit financially from increased merchandise revenue.

Saiz you.

The company in question obviously see's it differently. How can your opinion possibly matter in someone Else's business decision?

 

[ShirlandDesign]

I don't have a dog in this fight. It just seems like changing the name is the right thing to do. The team stands to benefit in the long run.

So, were back to being an a$$ is legal, and having the right is not equal to doing whats right. The big deal is when the organization (our government) who tells us how to live and die steps in for the sake of appearances.