Jonathan Turley | The patent office out of bounds in Redskins trademark case

The decision this past week by the U.S. Patent and Trademark Office to rescind federal trademark protections for the Redskins may ultimately tip the balance in the controversy over the 80-year-old name of Washington’s football team. If so, that would be a shame. Not because there’s insufficient reason to consider the name “disparaging to Native Americans,” as the patent office determined. Many of us recoil at the reference to skin color as a team identity. The problem is that the Redskins case is just the latest example of a federal agency going beyond its brief to inappropriately insert itself in social or political debates.

Few people would have expected the future of the Redskins to be determined by an obscure panel in a relatively small government agency. Yet the Trademark Trial and Appeal Board showed little restraint in launching itself into this heated argument — issuing an opinion that supports calls for change from powerful politicians, including President Obama and Senate Majority Leader Harry Reid (D-Nev.). The board had at its disposal a ridiculously ambiguous standard that allows the denial of a trademark if it “may disparage” a “substantial composite” of a group at the time the trademark is registered.

This standard isn’t concerned with how widely offensive a trademark may be now, or with how the general population or even a majority of the group in question views it. It didn’t matter to the patent office that polls show substantial majorities of the public and the Native American community do not find the name offensive. A 2004 Annenberg Public Policy Center poll found that 90 percent of Native Americans said the name didn’t bother them. Instead, the board focused on a 1993 resolution adopted by the National Congress of American Indians denouncing the name. The board simply extrapolated that, since the National Congress represented about 30 percent of Native Americans, one out of every three Native Americans found it offensive. “Thirty percent is without doubt a substantial composite,” the board wrote.

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