Patent & Trademark Office Cancels Washington Redskins Trademarks, Claiming They Disparage the Indian Race

Escalation.

The government has an officially-approved viewpoint, and they've got the force, and the inclination, to push that viewpoint on to the citizens it supposedly serves.

Volokh explains what this means -- and it doesn't mean all that much from the Redskins' perspective. Apparently a trademark has a legal power whether the government officially recognizes it (registers it) or not; there are advantages to having a registered trademark, such as being presumed to have established the trademark when suing for infringement, but a holder of a non-registered trademark can still sue for infringement. He just has to prove he owns the trademark in court, rather than being presumed to own it.

In the Redskins' case, that shouldn't be a difficult hurdle.

Volokh thinks that this constitutes viewpoint-discrimination by the government and that all such restrictions should be unconstitutional...

My tentative view is that the general exclusion of marks that disparage persons, institutions, beliefs, or national symbols should be seen as unconstitutional. Trademark registration, I think, is a government benefit program open to a wide array of speakers with little quality judgment. Like other such programs (such as broadly available funding programs, tax exemptions, or access to government property), it should be seen as a form of "limited public forum," in which the government may impose content-based limits but not viewpoint-based ones. An exclusion of marks that disparage groups while allowing marks that praise those groups strikes me as viewpoint discrimination.

....but that strikes me as too large a position for any court to take.

Harry Reid, of course, mumbled about the decision like a confused old man...

...but he's just probably happy we're not talking about child stalking.

posted by Ace at 06:47 PM

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