Today, the US Patent and Trademark Office cancelled trademarks for Washington DC’s NFL team because its mascot name is “disparaging to Native Americans.” The office is right. The team name is disparaging, to say the least. Offensive, disgusting, deplorable are more like it.
For that reason, the fact that there’s a legitimate threat to the continued survival of this name is great. But should the US Patent Office be the ones responsible for making these decisions? Should any federal institution? Or is this a threat to free speech?
Evan Brown, a copyright and trademark expert was very unnerved by the ruling, tweeting, “If you’re counting coup re Redskins decision, think whether you want that agency to wield such power over speech.” He then linked to the trademark registration certificate for the rap group N.W.A. which also includes a racial slur.
That’s hardly a smoking gun — the historical and socio-cultural ramifications behind Washington’s team name and the pioneers of gangsta rap couldn’t be farther apart. But that’s not the point. The point is, under this rationale, the US Patent Office could feasibly cancel N.W.A.’s trademarks as well.
The legal justification for the USPTO’s move is called the Lanham Act, which says the Office can cancel or reject a patent if it “comprises immoral, deceptive, or scandalous matter” or disparages “persons, living or dead, institutions, beliefs, or national symbols, or to bring them into contempt, or disrepute.”
But Dave Owens, a San Francisco intellectual property lawyer argues that this section of the Lanham Act violates the right to free speech in the First Amendment:
Free Speech is a bedrock principle of our democracy. Such a principle should not
be compromised because a speaker chooses to express his views in a commercial context.
As a culture, most of our exposure to ideas is through commercialism. The government
cannot have a blanket policy prohibiting viewpoints that are scandalous, immoral, or
disparaging. The First Amendment puts the control of ideas in the hands of its citizens.
Likewise, the government should place a mark’s social worth into the hands of its
For all the celebrating and the righteous outrage that’s sure to follow on either end of the American political spectrum, it may all be turn out to be much ado about nothing. This is hardly the first time the Redskins’ trademark has been challenged — the fight’s been going on since 1992 — and it’s unlikely to be the last, as the team will almost certainly appeal the ruling. But it highlights an obscure but important legal statute that, under the wrong circumstances, could pose a serious threat to free speech.