June 19 (Bloomberg) -- A ruling that the Washington Redskins’ name is disparaging to native Americans brought swift questions from football fans and small-government conservatives alike: Why is the U.S. Patent and Trademark Office deciding what’s appropriate?
Turns out the office draws its authority from Congress -- with an assist, in this case, from some old dictionaries.
Every year, the trademark office considers hundreds of thousands of applications in its efforts to make sure trademarks remain unique in identifying the owner of a product, like Kraft cheese.
Every now and then, the office encounters an application that requires it to exercise its federal mandate to weed out names that may inspire contempt or disrepute. Madonna wine? Old Glory Condoms featuring an American flag? Khoran-brand alcoholic beverages? The office has had a say.
The only standing trademark that the office has recommended canceling, though, is the Redskins mark, according to Jesse Witten a lawyer at Drinker Biddle in Washington. Witten, a onetime George W. Bush appointee to the Justice Department, represented native Americans in the appeal to the trademark office.
The ruling turned on a federal law that requires the office to determine if a trademark “consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”
The office analyzes new applications for offensive material. Outsiders can object before the trademark is registered. Relatively few applications, however, court trouble.
“A company that has a public image to maintain is not going to want to file a trademark application for something that would appear to the public to be scandalous,” said Kristen McCallion, a New York-based trademark lawyer with Fish & Richardson.
There are exceptions. The office rejected an application proposing an unprintable name that described its rooster-shaped lollipop. An appeals court upheld the rejection in 2012.
Many decisions depend on the context, and the times. In 1959, the office denied a German manufacturer’s request to approve the name Madonna wine, deeming it scandalous. In 2008, it approved a new-mother’s consultation service called Madonna Perinatal Services.
The agency said in 2010 that the proposed name Khoran alcoholic beverages could easily be confused with the Muslim holy book, the Koran, which forbids alcohol consumption; it rejected the application.
“Khoran in Armenia means alter; it has nothing to do with the Islamic Koran,” said Garo Kurkjian, president of Lebanese Arak Corp. in Glendale, California, which imports wine made in Armenia. The wine, which has been sold for more than 25 years, continues without an official trademark. It has a small market share, so “it’s not worth it to spend thousands of dollars to fight that issue with the trademark office.”
The office approved the Old Glory Condoms trademark in 1993. The name was abandoned in 2004.
Even political speech has to follow the rules. In May, an appeals court upheld the agency’s decision to reject a trademark on the phrase “Stop the Islamisation of America” sought by activist Pamela Geller. The phrase, especially as used by Geller, implied that the Muslim religion was linked to terrorism, the court said. Geller has called the ruling unconstitutional.
Yesterday’s decision on Washington’s NFL team came after a group of young native Americans represented by Witten petitioned the office in 2006 to reexamine the trademark.
While the team has been using the Redskins name since the 1930s, the office’s Trademark Trial and Appeal Board limited its inquiries to the period of 1967 to 1990, when the team filed applications to protect the name.
When trademark examiners want to determine whether a term is broadly considered offensive, they often turn to the dictionary. In the 1960s, the board said in its written decision, many dictionaries described “redskin” as offensive. By the 1980s, the reference books were unanimous on that point, the board said.
Linguists also were called to look at the history of the word, it said.
The term has “always been a racial designation” and the National Council of American Indians has been lobbying against the name since the 1960s, according to the board, in a 2-1 ruling. The lone dissent questioned whether the evidence was sufficient.
Pro Football Inc., the closely held parent company of the Redskins, had pointed to letters written in the early 1990s from leaders of several tribes in support of the name, saying it was a “positive image depicting native American culture and heritage.”
The board rejected that view. “While this may reveal differing opinions within the community, it does not negate the opinions of those who find it disparaging,” it wrote.
Bob Raskopf, an attorney for the Redskins, said the team would appeal the decision. In the meantime, the name’s registration remains in effect.
A more recent redskin-themed effort failed. When a Maryland man tried last year to trademark “Redskins Hog Rinds,” the office rejected the name in less than six months. The moniker, it said, was disparaging.
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