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Supreme Court Strikes Down Law Banning “Offensive” trademarks

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The Supreme Court ruled today that the government can’t refuse to register trademarks based on the names, slogans or marks that it considers offensive, disparaging or which brings “any persons, living or dead,” into “contempt” or “disrepute.”

That prohibition was part of a 71-year-old law which had gone largely unnoticed outside of intellectual property circles for decades but which gained recent currency in the sports world after the U.S. Patent and Trademark Office (PTO) stripped the Washington Redskins of trademark protection on the basis of “Redskins” being deemed racially offensive. That ruling was put on hold — and the Redskins held on to their trademarks — while the case that was decided by the Supreme Court today was argued. The decision was not made on the merits of “Redskins” — it was about a band with Asian-American members called “The Slants” — but the ruling negates the trademark office’s ruling on the Redskins case.

The matter was of interest to baseball in connection with the Cleveland Indians mascot/logo Chief Wahoo, which some speculated could also lose its trademark protection if challenged. As I wrote a couple of years ago, however, there was a good argument available to the Indians that Wahoo would be exempt from the law, even if it was upheld. Now it doesn’t matter of course.

Speaking as a lawyer, the PTO’s regulations and other laws which applied in this area have always seemed vague and, potentially, capricious in that it gave some relatively unaccountable bureaucrats a great deal of authority over characterizing and potentially inhibiting speech. Even if a trademark characterization only applied to a certain, small area of intellectual property law and did not ban the use of certain names — the Redskins could still use that name, just not protect it via copyright law — the repercussions of such a ruling could outweigh the purpose of the ruling and have a chilling effect.

Speaking as someone who is not a fan of the name “Redskins” or Chief Wahoo, I’ve never favored regulations, laws, court rulings or government action of any kind as a means of getting rid of them.  I’ve written about this extensively. The Washington Redskins and the Cleveland Indians are private corporations. They, like any other private citizens, should be allowed by law to be as offensive as they want to be. The way to get them to cease doing so is via argument, persuasion and popular opinion from fans and citizens, directed at either the clubs themselves or the leagues in which they play. Leagues which do, in fact, have some power over how their clubs present themselves.

Either way, the work of eradicating offensive names and logos from sports teams should not be done by the government, which should have more important things to do. It should be done by the teams themselves, after they come to their damn senses that naming yourself after a racial slur or identifying yourself by a racial caricature is a dumb, mean and hateful thing to do.

Red Sox owner John Henry “haunted” by Tom Yawkey’s racist past, wants to rename Yawkey Way

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The Boston Herald’s Michael Silverman reports that Red Sox owner John Henry is “haunted” by the racist past of previous owner Tom Yawkey and wants to rename Yawkey Way, the tw0-block street that runs from Brookline Avenue to Boylston Street.

Earlier this year, the Red Sox renamed an extension of Yawkey Way after David Ortiz.

Yawkey refused to promote black players from the minor leagues during the 1950’s despite exceptional performance. The Red Sox became the last major league team to integrate in 1959 when Pumpsie Green was added to the roster. Jackie Robinson, who broke the color barrier in 1947, called Yawkey “one of the most bigoted guys in baseball.”

This comes days after racial tensions in Charlottesville, VA where protesters and counter-protesters clashed over removing the statue of Robert E. Lee. A member of a white supremacist group drove his car into a crowd of counter-protesters, killing one and injuring 19. While President Trump has done little in the way of disavowing these hate groups, various city leaders have taken the initiative to remove Confederate monuments and the various other ways in which those people have been glorified. Baltimore, for example, removed four Confederate monuments early Wednesday morning.

Renaming Yawkey Way has been a long time coming and with the current political climate, Henry has finally been motivated enough to take action. He said, “I discussed this a number of times with the previous mayoral administration and they did not want to open what they saw as a can of worms. There are a number of buildings and institutions that bear the same name. The sale of the Red Sox by John Harrington helped to fund a number of very good works in the city done by the Yawkey Foundation (we had no control over where any monies were spent). The Yawkey Foundation has done a lot of great things over the years that have nothing to do with our history.”

Henry added, “The Red Sox don’t control the naming or renaming of streets. But for me, personally, the street name has always been a consistent reminder that it is our job to ensure the Red Sox are not just multi-cultural, but stand for as many of the right things in our community as we can – particularly in our African-American community and in the Dominican community that has embraced us so fully. The Red Sox Foundation and other organizations the Sox created such as Home Base have accomplished a lot over the last 15 years, but I am still haunted by what went on here a long time before we arrived.”

Henry says if the decision were entirely up to him, he would dedicate the street to David Ortiz, calling it “David Ortiz Way” or “Big Papi Way.”

Though racism is a problem throughout the U.S., racism has been a particular problem in Boston at least when it comes to baseball. Earlier this year, Orioles outfielder Adam Jones had peanuts thrown at him and was called racist slurs by fans at Fenway Park. Red Sox starter David Price said he has been on the receiving end of racist taunts from Boston fans as well. After the Jones incident, other players — including CC Sabathia, Barry Bonds, Mark McLemore, and Jackie Bradley, Jr. — spoke up and said that they had been treated similarly at Fenway Park.

Henry’s sensitivity to the issue is quite understandable. And he deserves kudos for doing the right thing in pushing to rename Yawkey Way, but one has to wonder why this hadn’t been done much, much sooner.

The Cardinals believe they are going to get Rally Cat back soon

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The saga of Rally Cat continues to unfold.

To remind you, Last Wednesday the St. Louis Cardinals were propelled to victory via the magic of the Rally Catn. We were calling it “Rally Kitten” then, but now it’s Rally Cat, as we’ll explain in a moment.

Then, as soon as he appeared, he was gone, lost by the groundskeeper who captured him when he went to go tend to his numerous claw and bite injuries. Then he was found again and given to the St. Louis Feral Cat Outreach center! Yay! Now the Cardinals say they’re going to get him back. The Post-Dispatch reports:

The St. Louis Feral Cat Outreach organization has assured us they will be returning our cat to us after a mandatory 10-day quarantine period,” said Ron Watermon, the team’s vice president of communications, who added later that Rally Cat would be “cared for by our team, making the Cardinals Clubhouse his home.”

The Feral Cat Outreach center actually named him Rally Cat. Which, well, fine. But if good, smart people with better taste than them want to start calling him Yadier Meowlina, none of us will stop them.