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.