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Wednesday, June 18, 2014

WaPo: U.S. patent office cancels Redskins trademark registration, says name is disparaging

The United States Patent and Trademark Office has canceled the Washington Redskins trademark registration, calling the football team’s name “disparaging to Native Americans.”

Could this mean Chief Wahoo’s days are numbered?

Slivers of Maranville descends into chaos (SdeB) Posted: June 18, 2014 at 12:17 PM | 173 comment(s) Login to Bookmark
  Tags: braves, cleveland, indians, mascots, nfl, washington

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   101. Baldrick Posted: June 19, 2014 at 01:41 AM (#4730192)
Okay, I'll answer your dumb analogy for real. Yes, it would be fine. Because who the F cares if they name their coffee shop that? No one. It's not a real thing and never would be. And if they did try, the PTO would probably justifiably decide that 'disparage' in this context requires paying attention to context. And in this case, there is a huge, incredibly powerful, political party ready and able to defend the interests of those who are being treated so meanly. And if they tried to block the trademark, a judge would likely decide that Republicans, being members of a political party, are probably subject to much higher levels of scrutiny in terms of restricting speech. And would look at the legislative history to determine whether Congress intended to restrict that sort of thing, discover that it did not, and allow the trademark.

These are DIFFERENT conditions than the Washington football team's name. Where the free speech justifications are weaker, the danger of non-refutable disparagement is much higher, and there is likely (though I am no expert on trademark law by any means, so maybe I'm wrong) to be some evidence of legislative interest in restricting trademarks on patently offensive names of this sort.

You are going to respond "but where is any of that in law??!?!?!?111" and post a link to the text of the Act again. So let me just preemptively inform you that ALL statutes have this sort of vague terminology in them. The practice of judicial decisions and administrative judgments is FULL of these kind of jumps of reasoning. Our system of law, in fact, only functions because people all agree to make reasonable intuitive leaps in order to prevent strict literalism from grinding everything to a screeching halt.

If you want to say that it would be coherent and reasonable to assume, given the legislative history, that Congress really did intend to widely and categorically restrict ALL disparaging trademarks of any sort, I would listen to that argument. Though I will bet a shiny nickel that you won't find any evidence to support that claim. It's possible that looking into that history would suggest that there isn't really ANY particular meaning to this provision--and in practice no trademarks should be denied based on this reasoning. So there may be a legal argument there to reverse this decision.

But...and this is important...that has nothing to do with the broader argument here. Which is that the team's name is racist and should have been abandoned decades ago. Whether this is the avenue that will successfully get it done...who knows. But it OUGHT to happen, one way or the other. And your legal obfuscation doesn't change any of that.
   102. DJS and the Infinite Sadness Posted: June 19, 2014 at 01:55 AM (#4730196)
Okay, I'll answer your dumb analogy for real. Yes, it would be fine. Because who the F cares if they name their coffee shop that? No one.

Ah, so you've amended the Lanham Act, have you? I didn't know the government worked that way!

So let me just preemptively inform you that ALL statutes have this sort of vague terminology in them.

Bullshit answer. I might as well say the Digital Millennium Copyright Act says I get free ice cream because there are some issues it remains vague on.

Again, this is the USPTO's own two step test

Would the mark be understood, in its context, as referring to an identifiable group of people?
May that reference be perceived as disparaging to a substantial composite of that group?

That's not some foggy reading of legislative intent, that's exactly how the USPTO exercises its power. So, ought the Stupid Republicans Coffee Shop be allowed a trademark?

(My position is that under the law, neither the Redskins or the Stupid Republicans Coffee Shop should receive a trademark, but that the disparagement clause of the Lanham Act should be repealed)

You don't specifically have to answer if you want to, I don't mind waiting for the first-tier of the progressive debaters, like JSF or Lassus or dp or tshipman to pop in. I don't even care all that much about what makes Dan Snyder money, but it's always useful to know which people are arguing based on a consistent, underlying principle and which are more arbitrary.

[Edit - or MCoA, does he ever pop in anymore?]
   103. Baldrick Posted: June 19, 2014 at 02:22 AM (#4730197)
It's always nice when you inform someone that you are preemptively responding to an argument and then they make it anyways.

This is how the courts work. It just is. I'm sorry that it doesn't provide you with definite and determinate answers to every question. But the law is a social institution. It's not a piece of code which can give yes/no answers to every question, on which everyone will agree. It has to be interpreted by actual people, doing their best to assess the legislative intent, the social implications, and the countervailing factors at work. EVERYONE agrees on this. Clarence Thomas and Antonin Scalia agree with me. Robert Bork agrees with me. The idea that the law contains one and only one correct reading, found in the literal meaning of the words in a statute, which must be applied in a vacuum, hasn't been a credible legal theory for over a century. That's why your analogy is stupid, because it fails to address all the important and distinct features of the Washington team name which any reasonable judge would and should attend to.

If you want to rescind all statutory language that is vague and could potentially be applied in overly broad fashions, then I welcome you to your anarcho-syndicalist commune. But I'll continue living within a legal system, thanks. And in that system, if I were a judge in this case, I would have no particular problem restricting this trademark, given the social and political history of our government's treatment of Native Americans and the legal obligations it has to protect socially-disadvantaged groups. Those indicate that the disparaging nature of the name is of the sort that Congress intended to prohibit. And I would not be worried about the free speech rights of the idiots who want to name their idiot coffee shop some idiotic name. Because it's quite easy to distinguish cases such as those. For all the reasons I already explained. Yes, it's disparaging in a sense of the word. But not in an important sense. And it would be pointless, counterproductive, and FAR more likely to tread on the 1st amendment if it were enforced in such a way.

Your argument seems to be 'because laws could be interpreted in stupid ways, we should assume that they will be, and repeal them before that happens.' My position is: don't interpret laws in stupid ways.

If you disagree, fine, go ahead. But please disagree informed by an actual understanding of the conditions under which judicial decisions must be made. And please don't act like this was anything other than an effort to distract from the real question, which is: does permitting this trademark embody the sort of damage that Congress was attempting to legislate against? The answer to that is a clear YES, because it's a racist name.
   104. boteman Posted: June 19, 2014 at 08:58 AM (#4730254)
The D.C. football team is a private enterprise. When it feels a business imperative to change its team nickname it will do it. *

I find it puzzling that a branch of the Federal gummint chose to take this action against a private business while the Feds themselves have another bureaucracy named the Bureau of Indian Affairs. Unless these people came here from India and speak Urdu or Hindi they aint Indians. Neither are they native Americans, unless they chose the name "America" prior to the arrival of Europeans, which I find dubious. If anything they are indigenous people, as far as we currently can see that far back in history.

So we have this much attention being paid to a private enterprise, probably because it commands a high profile thanks to NFL domination of sports media, while the Federal government (which enjoys a bit more real power overall) gets a free pass as it smites the big, bad sports team. Looks hypocritical to me. Like DJS, I'd prefer a consistent argument and application of principles here.

* I don't much care about the Foreskins, but it's a sad fact of life that D.C. sports media would go halfway up Dan Snyder's butt if he ever comes to full stop. Otherwise, I just ignore them, as much as humanly possible. Bryce Harper could hit a 73-run home run and Strasburg could throw a perfect game and the next day all the Sports Junkies et al would prattle on about would be the consistency of RGIII's bowel movement that morning.
   105. Bring Me the Head of Alfredo Griffin (Vlad) Posted: June 19, 2014 at 09:11 AM (#4730269)
Re: Dan's cafe example

Whether or not it's reflected in the law, there's an important moral distinction between criticism that targets a quality determined solely by birth (race, gender, sexual orientation, etc.) and one that targets a quality determined by personal decisions on the part of the individual being criticized (membership in an advocacy group or a political party, adherence to a religion, etc.). Criticism of the latter may still be wrong, of course, but if so it's wrong for a different reason.

For that reason, I think a Republicans are Idiots Coffee Shop should be a permissible mark, though I would think less of the owners for choosing that mark and I certainly wouldn't patronize the place.
   106. BDC Posted: June 19, 2014 at 09:27 AM (#4730284)
the Bureau of Indian Affairs

"Indian" is used widely and neutrally by well, Indians. (There's a national newspaper called "Indian Country Today.") It may seem like a misnomer, and it certainly raises confusions, but it's not an insult and there's no hypocrisy involved in using it while opposing racist language.

   107. snapper (history's 42nd greatest monster) Posted: June 19, 2014 at 09:47 AM (#4730302)
So, rename them the Washington Warriors, keep the logo. Everyone good?
   108. Bourbon Samurai Posted: June 19, 2014 at 09:53 AM (#4730309)
Personally, I like this solution. I would also accept the Warriors name change.

I have been a Redskins fan my whole life, and I have reluctantly come to the conclusion that enough people are offended by the name that it should be changed.

if it does change, though, I will feel sad. and then I will feel guilty for being sad.
   109. DJS and the Infinite Sadness Posted: June 19, 2014 at 10:04 AM (#4730317)
Whether or not it's reflected in the law, there's an important moral distinction between criticism that targets a quality determined solely by birth (race, gender, sexual orientation, etc.) and one that targets a quality determined by personal decisions on the part of the individual being criticized (membership in an advocacy group or a political party, adherence to a religion, etc.). Criticism of the latter may still be wrong, of course, but if so it's wrong for a different reason.


Thanks! I agree with you on the moral difference between the two marks.

My goal was to point out the explicit inconsistency of the clause. I would personally allow the mark too, but then, I don't think the USPTO or anyone should have this particular authority.
   110. You Know Nothing JT Snow (YR) Posted: June 19, 2014 at 10:08 AM (#4730321)
So, rename them the Washington Warriors, keep the logo. Everyone good?


I'd prefer the Washington Whitefolks. I hate football but I'd buy a jersey.
   111. DJS and the Infinite Sadness Posted: June 19, 2014 at 10:09 AM (#4730323)
This is how the courts work.

I was just asking what *you* would say and why you would personally allow one under the plain language and not the other. And you couldn't even do that or admit that there was no legal basis for your arbitrary distinction, instead choosing prevarication. I wanted to suss out who really had a consistent position on the issue and who think that the Redskins being insensitive makes it an imperative to draw the law in an arbitrary fashion. I got my answers.
   112. Bitter Mouse Posted: June 19, 2014 at 10:20 AM (#4730335)
I don't think the USPTO or anyone should have this particular authority.


This is the bit, right there. You object to their authority, and so of course the action taken with that authority is objectionable to you. You think everyone should be able to do anything freely, as long as property is respected. The rest of us want their to be more limits than that, and have conditions on the respecting of property.

You object to an authority following those conditions, because you object to the existence of those conditions. It sounds like you believe anything should be fair game to trademark, or is their an example of something that is too far for you? What is that "too far"? Where is the line between there and the recent ruling?
   113. thetailor Posted: June 19, 2014 at 10:35 AM (#4730351)
How about a cafe called Your Analogies are Idiotic and Demonstrate a Complete Lack of Respect for People Who Have Historically Been Utterly F***ed Over By Our Government and Society and Who Ought to Have Some Modicum of Say About the Way Corporations Depict Them For Profit

Again, evaluating the history of the particular group being referenced is a slippery slope. The history, and your personal judgment on their struggle, is irrelevant. All that matters is whether that particular group feels that such a reference is offensive.

But...and this is important...that has nothing to do with the broader argument here. Which is that the team's name is racist and should have been abandoned decades ago.

Is it? Again, people begin with the conclusion that it's obviously racist -- and then work backward from there.

It may have never been racist. It may have not been racist but then advocates made it seem racist. It may have always been racist. If it's racist and/or disparaging today according to those peoples, then it should be changed, case closed, according to the Lanham Act and morally.
   114. TDF, situational idiot Posted: June 19, 2014 at 10:59 AM (#4730372)
Canucks
Years ago, I asked a Canadian about this. He said "I don't understand your question. We use 'Canuck' like you use 'Yank'", to which I replied "Yea, but we use 'Canuck' like we use 'N!gger'".

I've always firmly believed that I have no right to decide what offends you; still, I'm uncomfortable calling someone a Canuck.
   115. Russ Posted: June 19, 2014 at 11:14 AM (#4730389)
which I replied "Yea, but we use 'Canuck' like we use 'N!gger'".


I don't know anywhere in the US where this is true.
   116. simon bedford Posted: June 19, 2014 at 11:16 AM (#4730390)
as a canuck, we often great each other when abroad with "great to see a fellow canuck" or talk about our shared "canuck" herritage and history, its has zero negative connatations except the ####### vancouver hockey team and their idiot fans
   117. Yeaarrgghhhh Posted: June 19, 2014 at 11:25 AM (#4730396)
Any argument that the government doesn't have the authority to make this decision or is limiting free speech doesn't pass the laugh test. The Lanham Act has been around for 60 years, and I don't think anyone has ever seriously questioned the Federal government's authority to enforce it. Trademark law is a *good* thing for businesses because it allows them to protect their hard earned market share from competitors who otherwise might trade off of their name and reputation. As part of that authority, the PTO has to decide what trademarks are entitled to the protection of that federal law, and disparagement is simply one of the criteria the PTO may use to deny protection. The full clause of the statute is as follows:

No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it ... (a) 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; or a geographical indication which, when used on or in connection with wines or spirits, identifies a place other than the origin of the goods and is first used on or in connection with wines or spirits by the applicant on or after one year after the date on which the WTO Agreement (as defined in section 3501 (9) of title 19) enters into force with respect to the United States.

Does the PTO have authority to say that a mark that's misleading isn't entitled to protection? Of course. Denying protection on disparagement grounds is unusual, but well within the PTO's authority as well. As others have noted, no one is saying that the team can't use the name; they're just not entitled to protection under the Lanham Act.
   118. thetailor Posted: June 19, 2014 at 11:30 AM (#4730403)
Years ago, I asked a Canadian about this. He said "I don't understand your question. We use 'Canuck' like you use 'Yank'", to which I replied "Yea, but we use 'Canuck' like we use 'N!gger'".
So in that sense it is exactly like the N word... in that it may have been offensive, may have been co-opted by the target group, and is of dubious and circumstantial meaning today.
   119. Yeaarrgghhhh Posted: June 19, 2014 at 11:31 AM (#4730407)
Also, you can't argue that this is about the feds interfering with a private business's property rights without acknowledging that the Lanham Act is mostly about protecting property rights. You can't give the PTO the authority to protect those rights without setting guidelines and limits re what rights are entitled to protection.
   120. BDC Posted: June 19, 2014 at 11:35 AM (#4730412)
a geographical indication which, when used on or in connection with wines or spirits, identifies a place other than the origin of the goods

IOW no more California "Burgundy" or "Chablis"? Has this gone into effect? I don't pay a lot of attention to the jug-wine aisle :)
   121. BDC Posted: June 19, 2014 at 11:36 AM (#4730413)
Consists of or comprises … deceptive … matter

This is honored in the breach, I would reckon. For instance, I can absolutely believe it's not butter.
   122. Yeaarrgghhhh Posted: June 19, 2014 at 12:02 PM (#4730449)
IOW no more California "Burgundy" or "Chablis"? Has this gone into effect? I don't pay a lot of attention to the jug-wine aisle :)

In theory I guess someone could challenge those labels. Not sure if that's a recent addition to the statute.
   123. Randy Jones Posted: June 19, 2014 at 12:06 PM (#4730454)
I'd prefer the Washington Whitefolks. I hate football but I'd buy a jersey.

How about this?
   124. Ron J2 Posted: June 19, 2014 at 12:08 PM (#4730461)
#115 Canuckistan was intended as an insult. I think you'll find there is a fair number of social conservatives who use Canuck as a pejorative.

But if the insultee embraces the word it loses its power. There's no doubt (particularly considering that the originator was RLM) that SDCN (Stat Drunk Computer Nerd) was intended as an insult, but I know I've described myself as a card carrying SDCN. And I've probably also referred to myself as a Canuck (and am only amused by people trying to use the term as an insult)

Speaking of national insults Monty Python versus Belgium
   125. You Know Nothing JT Snow (YR) Posted: June 19, 2014 at 12:12 PM (#4730468)
I'd prefer the Washington Whitefolks. I hate football but I'd buy a jersey.

How about this?


That's not bad, the only thing I don't like about the logo is the little "$" sign which would indicate avariciousness and I wouldn't endorse any such branding so clearly intertwined with what is widely considered negative characteristics. Change it to something more neutral and culturally Caucasian (or just make it a hat) and I'd be on-board.
   126. Baldrick Posted: June 19, 2014 at 12:31 PM (#4730493)
I was just asking what *you* would say and why you would personally allow one under the plain language and not the other. And you couldn't even do that or admit that there was no legal basis for your arbitrary distinction, instead choosing prevarication. I wanted to suss out who really had a consistent position on the issue and who think that the Redskins being insensitive makes it an imperative to draw the law in an arbitrary fashion. I got my answers.

No, you still don't understand. There IS a legal basis, one which is only 'arbitrary' in the sense that virtually ANY legal decision involves an element of judgment and interpretation. Your inability to understand this is not my problem.
   127. Barry`s_Lazy_Boy Posted: June 19, 2014 at 12:35 PM (#4730501)
Has everyone seen Congressman Steve King's eminently reasonable take on the issue?

There isn't much more embarrassing to an Iowa resident than the fact that he keeps winning elections.
   128. You Know Nothing JT Snow (YR) Posted: June 19, 2014 at 12:41 PM (#4730508)
I'd be ok with this team name as well, which was briefly proposed for a Colorado school. Per Wiki:

At first, the team's T-shirts used "Fightin' Whites" as the name of the team, but various media reports referred to the team as the "Whities" instead of "Whites". The plan to insult whites in the same way the minority students perceived Native Americans being insulted backfired on the group when the team's popularity skyrocketed.
   129. DJS and the Infinite Sadness Posted: June 19, 2014 at 12:53 PM (#4730523)
No, you still don't understand. There IS a legal basis, one which is only 'arbitrary' in the sense that virtually ANY legal decision involves an element of judgment and interpretation.

Fine. The court opinion giving USPTO leeway to ban some disparaging marks but not others, based solely on things that white liberals feel guilty about is..._______ vs. ______.

   130. Johnny Sycophant-Laden Fora Posted: June 19, 2014 at 01:05 PM (#4730543)
So, ought the Stupid Republicans Coffee Shop be allowed a trademark?


No, they can name their shop that if they want but they can't (should not be allowed to) trademark it.

   131. Shibal Posted: June 19, 2014 at 01:08 PM (#4730548)
#115 Canuckistan was intended as an insult. I think you'll find there is a fair number of social conservatives who use Canuck as a pejorative.


The term Canuckistan is treated as a joke, by lefties, righties, whites, blacks, Canadians, cute little puppies and every other reasonable carnivore. Like calling Oklahoma natives Okies. Or "Hoosiers" for people from Indiana.

I have yet to meet a Canadian who gets offended by that term. And I work or have worked with many from Canuckistan.

That may change though, as soon as all the well-meaning lefties discover they may have found a new group that can claim victimhood.

   132. Random Transaction Generator Posted: June 19, 2014 at 01:11 PM (#4730555)
That may change though, as soon as all the well-meaning lefties discover they may have found a new group that they can claim are being victimized.


As someone from Canuckistan, your American version of "lefties" have to go a lot more "left" to be considered a "lefty" up here.
   133. DJS and the Infinite Sadness Posted: June 19, 2014 at 01:39 PM (#4730606)
No, they can name their shop that if they want but they can't (should not be allowed to) trademark it.

Bingo!

In fact, I totally called it at the start of the page - that you would give an honest, consistent answer.

Admittedly, it's not quite as fun.
   134. Jack Keefe Posted: June 19, 2014 at 02:01 PM (#4730636)
I checkt with Ozzie Guillen and he says you must not say Republicans are Idiots Coffee Shop you must say Politicly Challenged People are Mentaly SPecial Beverage of Your Choice Esatblishment.
   135. GregD Posted: June 19, 2014 at 04:45 PM (#4730928)
This Times piece describes other cases where the PTO has rejected trademarks because of offensiveness, though not all the denials have held up in court. Nixed included Heeb magazine and Memphis Mafia (overturned by court) and Khoran liquor and The Slants rock band!
   136. TDF, situational idiot Posted: June 19, 2014 at 04:47 PM (#4730935)
which I replied "Yea, but we use 'Canuck' like we use 'N!gger'".

I don't know anywhere in the US where this is true.
Detroit, in the 80's and 90's.
So in that sense it is exactly like the N word... in that it may have been offensive, may have been co-opted by the target group, and is of dubious and circumstantial meaning today.
Words also have context to the speaker. If I (or any of my friends 25 years ago) called you a Canadian a Canuck, it was not a good thing no matter how the hearer took it.

Just because I have no right to decide what offends you, if someone says something intending to offend you and you aren't offended, that doesn't make the situation OK.
   137. Greg K Posted: June 19, 2014 at 05:06 PM (#4730957)
Words also have context to the speaker. If I (or any of my friends 25 years ago) called you a Canadian a Canuck, it was not a good thing no matter how the hearer took it.

Just out of curiosity, did any Canadians react poorly to being called Canucks?

I have to admit, it doesn't really matter what the word is, if someone attempts to make me feel unwelcome I can usually tell by body language and tone of voice. So I'm sure if someone violently hurled "Canuck" abusively at me, I'd probably get the message. Though it would be tinged with confusion. In a similar way that someone angrily shouting "Shoe!" at me would be both uncomfortable and confusing.
   138. RMc is a fine piece of cheese Posted: June 19, 2014 at 05:06 PM (#4730958)
I'd go to the Stupid Republicans Cafe. (I mean, I'm not a Republican, but at least I'm stupid.)
   139. The Polish Sausage Racer Posted: June 19, 2014 at 05:26 PM (#4730986)
FWIW, these are the relevant provisions from the USPTO's Manual of Examination Procedure. Given the findings that HEEB, SQUAW and SLANTS are disparaging, this decision doesn't seem all that far off the mark. Italian mobsters are still fair game though.

--------------------------------------------------------------------

1203.03(b) Disparagement, Bringing into Contempt, and Bringing into Disrepute
Section 2(a) prohibits the registration of a mark that consists of or comprises matter that may disparage, or bring into contempt or disrepute, persons, institutions, beliefs, or national symbols. See TMEP §1203.03(a)(i) regarding persons, TMEP §1203.03(a)(ii) regarding institutions, and TMEP §1203.03(a)(iii) regarding national symbols.

In sustaining an opposition on this ground, the Trademark Trial and Appeal Board stated as follows:

Disparagement is essentially a violation of one’s right of privacy – the right to be “let alone” from contempt or ridicule. See, Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831, 218 USPQ 1 (6th Cir. 1983). It has been defined as the publication of a statement which the publisher intends to be understood, or which the recipient reasonably should understand, as tending “to cast doubt upon the quality of another’s land, chattels, or intangible things.” Restatement (Second) of Torts §629 (1977).

Greyhound Corp. v. Both Worlds Inc., 6 USPQ2d 1635, 1639 (TTAB 1988).

1203.03(b)(i) Elements of a §2(a) Disparagement Refusal
The Board applies a two-part test in determining whether a proposed mark is disparaging:

(1) What is the likely meaning of the matter in question, taking into account not only dictionary definitions, but also the relationship of the matter to the other elements in the mark, the nature of the goods or services, and the manner in which the mark is used in the marketplace in connection with the goods or services; and
(2) If that meaning is found to refer to identifiable persons, institutions, beliefs or national symbols, whether that meaning may be disparaging to a substantial composite of the referenced group.
See In re Tam, 108 USPQ2d 1305 (TTAB 2013); In re Lebanese Arak Corp., 94 USPQ2d 1215, 217 (TTAB 2010); In re Squaw Valley Dev. Co., 80 USPQ2d 1264, 1267 (TTAB 2006); Order Sons of Italy in Am. v. The Memphis Mafia, Inc., 52 USPQ2d 1364, 1368 (TTAB 1999); Harjo v. Pro-Football Inc., 50 USPQ2d 1705, 1740-41 (TTAB 1999), rev’d on other grounds, 284 F. Supp. 2d 96, 68 USPQ2d 1225 (D.D.C. 2003).

The question of disparagement must be considered in relation to the goods or services identified in the application and the manner of use in the marketplace. The mere fact that a term has several meanings, even when many may be innocuous, does not foreclose the possibility that the term is disparaging. In re Tam, 108 USPQ2d at 1310. In Squaw Valley, the terms SQUAW and SQUAW ONE were found to be disparaging when used in connection with clothing in Class 25 and retail store services in the field of sporting goods and equipment and clothing in Class 35, because the likely meaning of “Squaw” is an American Indian woman or wife, and the examining attorney’s evidence established prima facie that a substantial composite of Native Americans would consider the term to be offensive. However, these terms were found not to be disparaging when used in connection with ski-related equipment in Class 28, because the likely meaning of “Squaw” in relation to these goods was deemed to be applicant’s Squaw Valley ski resort. In re Squaw Valley Dev., 80 USPQ2d at 1276-77, 1279, 1282.

In an ex parte case, the examining attorney must make a prima facie showing that a substantial composite of the referenced group, although not necessarily a majority, would find the proposed mark, as used on or in connection with the relevant goods or services, to be disparaging in the context of contemporary attitudes. See In re Tam, 108 USPQ2d at 1310; In re Lebanese Arak, 94 USPQ2d at 1218 (citing In re Heeb Media LLC, 89 USPQ2d 1071, 1074 (TTAB 2008)). In Lebanese Arak, the Board clarified that when the application of a mark to a product would offend the sensibilities of an ethnic or religious group, the proper ground for refusal is that the matter is disparaging to the members of that group. In re Lebanese Arak, 94 USPQ2d at 1217. Moreover, when religious beliefs or tenets are involved, the proper focus is on the group of persons that adhere to those beliefs or tenets. Id. The fact that an applicant has good intentions underlying its use of a term does not obviate the fact that a substantial composite of the referenced group would find the term objectionable. In re Tam, 108 USPQ2d at 1312 (citing Heeb Media, 89 USPQ2d at 1077). The prima facie showing shifts the burden to applicant for rebuttal. Squaw Valley, 80 USPQ2d at 1271.

1203.03(b)(ii) Disparagement, Bringing into Contempt, and Bringing into Disrepute: Case References
Disparagement was found in the following cases: In re Tam, 108 USPQ2d 1305 (TTAB 2013) (finding THE SLANTS for live performances by a musical band to be disparaging to a substantial composite of people of Asian descent); In re Lebanese Arak Corp., 94 USPQ2d 1215 (TTAB 2010) (finding KHORAN for wines to be disparaging because the public, in general, and Muslim Americans, in particular, would regard the mark as referring to the holy text of Islam, and given that Islamic authorities view alcohol as a prohibited substance, Muslims would find KHORAN used for wine as disparaging to themselves, their religion, and their beliefs); In re Heeb Media LLC, 89 USPQ2d 1071 (TTAB 2008) (finding HEEB for clothing and entertainment services to be disparaging since HEEB means a Jewish person, dictionary definitions unanimously support the derogatory nature of HEEB, evidence of record supports that a substantial composite of the referenced group, i.e., the Jewish community, will perceive HEEB as disparaging, and HEEB has no other meaning in relation to clothing or entertainment services); Boston Red Sox Baseball Club Ltd. P'ship v. Sherman, 88 USPQ2d 1581 (TTAB 2008) (finding SEX ROD to be disparaging because it is sexually vulgar and offensive and the public will associate it with opposer’s mark RED SOX); In re Squaw Valley Dev. Co., 80 USPQ2d 1264 (TTAB 2006) (finding SQUAW and SQUAW ONE to be disparaging when used in connection with clothing in Class 25 and retail store services in the field of sporting goods and equipment and clothing in Class 35, because the likely meaning of “Squaw” in relation to these goods or services is an American Indian woman or wife, and the examining attorney’s evidence established prima facie that a substantial composite of Native Americans would consider the term to be offensive; however, these terms were found not to be disparaging when used in connection with ski-related equipment in Class 28, because the likely meaning of “Squaw” in relation to these goods was deemed to be applicant's Squaw Valley ski resort); Greyhound Corp. v. Both Worlds Inc., 6 USPQ2d 1635, 1639-40 (TTAB 1988) (finding design of dog defecating, for clothing, to disparage, and bring into contempt or disrepute, opposer’s running dog symbol, the Board finding the evidence of record “sufficient to show prima facie that this design [the running dog symbol] is, in effect, an alter ego of opposer which points uniquely and unmistakably to opposer’s persona.”); In re Anti-Communist World Freedom Cong., Inc., 161 USPQ 304 (TTAB 1969) (holding design of an “X” superimposed over a hammer and sickle to disparage, and hold in contempt and disrepute, a national symbol of the U.S.S.R.).

Disparagement was not found in the following cases: Bd. of Trs. of Univ. of Ala. v. Pitts, 107 USPQ2d 2001, 2030 (TTAB 2013) (finding HOUNDSTOOTH MAFIA and design for apparel not to be disparaging in view of the incongruous nature of the mark); Boswell v. Mavety Media Grp. Ltd., 52 USPQ2d 1600 (TTAB 1999) (finding BLACK TAIL used on adult entertainment magazines, not to be disparaging of women in general, or African-American women in particular, nor to bring those groups into contempt or disrepute); Order Sons of Italy in Am. v. Memphis Mafia Inc., 52 USPQ2d 1364 (TTAB 1999) (finding THE MEMPHIS MAFIA for entertainment services not to be matter that disparages Italian-Americans or bring them into contempt or disrepute); In re In Over Our Heads Inc., 16 USPQ2d 1653, 1654 (TTAB 1990) (finding MOONIES and design incorporating a “buttocks caricature,” for dolls whose pants can be dropped, not to be disparaging matter that is unregistrable under §2(a), the Board finding that the mark “would, when used on a doll, most likely be perceived as indicating that the doll ‘moons,’ and would not be perceived as referencing members of The Unification Church.”).
   140. Johnny Sycophant-Laden Fora Posted: June 19, 2014 at 05:33 PM (#4730991)
that you would give an honest, consistent answer.


You know it really pisses off Ray when you say stuff like that about me.
   141. GregD Posted: June 19, 2014 at 05:54 PM (#4731010)
FWIW, these are the relevant provisions from the USPTO's Manual of Examination Procedure. Given the findings that HEEB, SQUAW and SLANTS are disparaging, this decision doesn't seem all that far off the mark. Italian mobsters are still fair game though.
Nice try invoking precedent. We all know this was a Kim-style crackdown on freedom of speech by a tyrant!
   142. Jolly Old St. Nick Is A Jolly Old St. Crip Posted: June 19, 2014 at 06:37 PM (#4731046)
I have to admit, it doesn't really matter what the word is, if someone attempts to make me feel unwelcome I can usually tell by body language and tone of voice.

Do you think that a stadium full of Redskins fans singing "Hail to the Redskins" are attempting to make Indians feel unwelcome to FedEx? I'm not saying you are, but it's the implication that only a "racist" could possibly oppose a name change that makes some of the supporters of the change sound like they've got pinwheels spinning in their heads. This is a dispute of propriety, not of motivation.
   143. TDF, situational idiot Posted: June 19, 2014 at 07:12 PM (#4731082)
So I'm sure if someone violently hurled "Canuck" abusively at me, I'd probably get the message. Though it would be tinged with confusion.
Which was the point of my original story - he found it odd that I considered "Canuck" disparaging, and I found it odd that he (and apparently all Canadians) didn't.
   144. Greg K Posted: June 19, 2014 at 07:14 PM (#4731083)
Do you think that a stadium full of Redskins fans singing "Hail to the Redskins" are attempting to make Indians feel unwelcome to FedEx? I'm not saying you are, but it's the implication that only a "racist" could possibly oppose a name change that makes some of the supporters of the change sound like they've got pinwheels spinning in their heads. This is a dispute of propriety, not of motivation.

Well I'm not really sure...I can't say I've put much thought if any at all into the Redskins issue,* I was really just curious about this Canuck pejorative thing I'd never heard of before.

Though I would say I'd assume that while a native may or may not feel unwelcome hearing a stadium full of people chanting that word, that's not the only test for whether it's a good idea for a team name.

*My main introduction to the word was through reading Tintin comics as a kid. The portrayal of natives, Japanese, Arabs, and Africans among others was pretty bizarre to a 12 year old reading them in the 1990s. Though they didn't make those books any less enthralling.

   145. Greg K Posted: June 19, 2014 at 07:22 PM (#4731091)
Which was the point of my original story - he found it odd that I considered "Canuck" disparaging, and I found it odd that he (and apparently all Canadians) didn't.

It does make for an interesting dynamic. In 30 years as a Canadian I've literally never heard of Canuck being used as a derogative term. Funny how a word can be a slur without the target knowing it. Is it even a slur? It's at least a separate category of slur I would think.

When I visited my parents in their winter lodgings in Florida I did hear "snowbird" thrown around, at times in an unfriendly tone. As I understand it snowbird doesn't necessarily refer to Canadians, but in most of these cases being Canadian was part of it. It can also be a fairly neutral term (and in fact up until I went to Florida this summer I thought it was generally always a neutral term). It was usually fairly easy to clue in when it was being used derisively and when it was just used playfully. But unless its accompanied with some other verbal or body language cues it's entirely possible I'd totally miss the fact I was being insulted.
   146. Howling John Shade Posted: June 19, 2014 at 08:15 PM (#4731115)

[Edit - or MCoA, does he ever pop in anymore?]
He's a little busy atm.
   147. DJS and the Infinite Sadness Posted: June 19, 2014 at 08:37 PM (#4731117)
He's a little busy atm.

Honestly, I had no idea!
   148. DJS and the Infinite Sadness Posted: June 19, 2014 at 08:40 PM (#4731119)
Nice try invoking precedent. We all know this was a Kim-style crackdown on freedom of speech by a tyrant!

I even said that under the law (and the precedents do nothing to change it) that it should be denied a trademark.

I got exactly what I wanted out of my thought exercise.
   149. BDC Posted: June 19, 2014 at 08:46 PM (#4731121)
FWIW, the term "Canuck" (though he probably never used it) cost Ed Muskie the 1972 Presidential nomination. So it had some local currency as an insult at some point at least.
   150. Joey B. Posted: June 19, 2014 at 08:54 PM (#4731125)
By the way, why isn't this thread marked as Off Topic like it should be? Despite the blurb about Chief Wahoo, it's really just another political thread that has nothing at all to do with baseball.
   151. The Id of SugarBear Blanks Posted: June 19, 2014 at 08:55 PM (#4731126)
Do you think that a stadium full of Redskins fans singing "Hail to the Redskins" are attempting to make Indians feel unwelcome to FedEx? I'm not saying you are, but it's the implication that only a "racist" could possibly oppose a name change that makes some of the supporters of the change sound like they've got pinwheels spinning in their heads. This is a dispute of propriety, not of motivation.

The only reason the singers and their defenders are able to concoct this "alternative use" of the term is that Nat-Ams are so out of sight, out of mind that they don't even register as people in the singers' minds. That makes the usage even more dubious.

People using the name at Fed-Ex and otherwise were on notice years ago than a lot of people considered it a slur. (And it is, of course, a slur.) They continued using it in spite of being on notice and its slurrish nature hasn't been a mystery for years. That's hardly noble.
   152. Howling John Shade Posted: June 19, 2014 at 09:20 PM (#4731142)
Honestly, I had no idea!
It's a new thing! He started just before the world cup. The soccer thread is pretty excited.
   153. Shibal Posted: June 19, 2014 at 09:51 PM (#4731165)
FWIW, the term "Canuck" (though he probably never used it) cost Ed Muskie the 1972 Presidential nomination. So it had some local currency as an insult at some point at least.


Come on now, that isn't true. Muskie cried (maybe, or otherwise threw a fit) because a NH newspaper said his wife liked to drink and said bad words. The Canuck letter didn't cause his meltdown.

And no one was going to beat Nixon in 1972. Pity Dick didn't know that; Watergate never would have happened.
   154. Rafael Bellylard: Built like a Panda. Posted: June 19, 2014 at 10:47 PM (#4731184)
My problem is I can't tell where the definitive line is regarding what a racial slur is, grammatically.

If 100 guys from London move to the US, it's ok to call them "Englishmen".
If 100 guys from Paris move to the US, it's ok to call them "Frenchmen".
But if 100 guys from Beijing come here, and you refer to them as "Chinamen" you'll have someone calling you a racist.

And coincidentally at work today, the parent of a client got pretty heated and called me "the n-word". I was somewhat amused by this, as I'm English/French Canadian, and on the skin tone scale, I'd be somewhere in the Dustin Pedroia range.
   155. Greg K Posted: June 19, 2014 at 11:37 PM (#4731211)
My problem is I can't tell where the definitive line is regarding what a racial slur is, grammatically.

I think that's because it's not a matter of grammar, it's a matter of usage and perception.
   156. Baldrick Posted: June 19, 2014 at 11:48 PM (#4731215)
Fine. The court opinion giving USPTO leeway to ban some disparaging marks but not others, based solely on things that white liberals feel guilty about is..._______ vs. ______.

Last try here.

I did a 15 second search. Here are some things that have been trademarked:
You Don't Make Enough Money to Be a Republican
The Dumb Republican
Have you heard that Satan is a Republican?
Abort the Republicans
Republicans Shouldn't Breed
Doing Our Part to Help Control the Republican Population

Those things all received trademark protection because the PTO is filled with people capable of understanding that statutes must be interpreted. And who therefore are also capable of understanding that the harm caused by this sort of 'disparagement' is unlike the sort of harm that Congress likely meant to regulate. But, since one poster here agreed with you, well, you must be right and every single person who approved those trademarks must be wrong, despite them being experts at this and you being some guy on the internet!

If you would like to advance an interpretive argument about why the statute makes more sense if interpreted broadly, or would better serve the interests of the public, or somehow matches up better with legislative intent, then feel free to do so. Those arguments certainly COULD be made, and might establish that these two circumstances are in fact identical legally. But absent those arguments, you're just trolling.

I got exactly what I wanted out of my thought exercise.

A real Socratic wonder you are.
   157. DJS and the Infinite Sadness Posted: June 20, 2014 at 12:01 AM (#4731220)
Those things all received trademark protection because the PTO is filled with people capable of understanding that statutes must be interpreted.

Why would someone bother? I believe every single one of them is dead.

But the idea that "a government or court said so, so it must be just" is an argument a stupid person makes.

So, up until the second Loving v. Virginia was ruled, interracial marriage was properly "interpreted" by courts as unjust, it was totally cool? Wow.
   158. Ron J2 Posted: June 20, 2014 at 08:09 AM (#4731289)
#137 I had no doubt that Patrick Buchanan intended to be disparaging with his use of Canuck (and Canuckistan)
   159. Greg K Posted: June 20, 2014 at 08:44 AM (#4731306)
#137 I had no doubt that Patrick Buchanan intended to be disparaging with his use of Canuck (and Canuckistan)

Ah I'd heard the term "Canuckistan", but hadn't realized anyone had ever used it un-ironically. The things you learn.

In other news the wikipedia entry of "Anti-Canadianism" includes a paragraph or two on Americans who have said mean things, and one on Brazilians who hate Canada. I never realized we rubbed so many people the wrong way.
   160. Canker Soriano Posted: June 20, 2014 at 11:51 AM (#4731462)
In other news the wikipedia entry of "Anti-Canadianism" includes a paragraph or two on Americans who have said mean things, and one on Brazilians who hate Canada. I never realized we rubbed so many people the wrong way.

It's poutine-related jealousy. Plus for years you could only get Tim Horton's in Canada.

We were understandably lashing out.
   161. Ron J2 Posted: June 20, 2014 at 12:06 PM (#4731474)
#160 And we probably crushed Brazil at curling, leading them to lash out in frustration.
   162. Shibal Posted: June 20, 2014 at 01:09 PM (#4731562)
A Canadian geese shat all over me one time.

I've held a grudge ever since.

Plus Toronto women are awful.
   163. Infinite Joost (Voxter) Posted: June 20, 2014 at 01:26 PM (#4731586)
Dan Szymborski, proving you can analyze baseball well and still be a clueless, privileged white #### at the same time.
   164. McCoy Posted: June 20, 2014 at 01:43 PM (#4731613)

IOW no more California "Burgundy" or "Chablis"? Has this gone into effect? I don't pay a lot of attention to the jug-wine aisle :)


No it does not mean no more "Burgundy or Chablis. Just like we still have Bourbon, vodka, gin, whiskey, Cabernet, Merlot, and so forth. Burgundy can't be trademarked but Sutter Home can be and so can Jim Beam, Mondavi, and Smirnoff.
   165. CrosbyBird Posted: June 22, 2014 at 11:53 PM (#4733252)
If the word is transformed, pretty much. Is there any evidence of people in 2014 using it as a racial slur?

Here in NYC, I don't think I've ever heard the word "redskin" used to refer to a person in conversation. I don't remember ever hearing "spic" or "kike" or "mick" used either, outside of a joke about racism.

To me, this is not and should not be a legal issue. It's a moral issue. I think Snyder should change the name because I think there's something morally wrong with appropriating a culture that is not your own for the purpose of a sports franchise. It happens that I think Chief Wahoo is more offensive than the Redskins name because it's a caricature. It doesn't offend me personally but I am a bit embarrassed that people are actually fighting to keep things like this.

That said, I don't like any government agency making a decision about whether something is offensive, let alone granting or refusing to grant special protections on the basis of that decision.
   166. Los Angeles El Hombre de Anaheim Posted: June 23, 2014 at 12:01 AM (#4733258)
Here in NYC, I don't think I've ever heard the word "redskin" used to refer to a person in conversation. I don't remember ever hearing "spic" or "kike" or "mick" used either, outside of a joke about racism.
In my entire life, I've only met one person in regular every-day life who was an American Indian. He introduced me to "prairie ######\" as an actual phrase people use. It's the special double racial slur, very rare.
   167. CrosbyBird Posted: June 23, 2014 at 12:11 AM (#4733261)
It's the special double racial slur, very rare.

Not so rare. I've heard of "sand" as the other half to refer to Arabs.
   168. DJS and the Infinite Sadness Posted: June 23, 2014 at 01:27 AM (#4733273)
Dan Szymborski, proving you can analyze baseball well and still be a clueless, privileged white #### at the same time.

If being a clueless privileged white #### entails wanting government agencies to not act in an arbitrary fashion, guilty as charged. If being a clueless privileged white #### entails understanding how languages evolve over time and how semantic shift happens, I'll wear that as a badge.

I'm sure the word Polack is used as a slur a lot more often than Redskin has ever been used as a slur. If the Redskins want to charge their mascot to Stupid ####### Polacks and call all interceptions "Polish Touchdowns," more power to them. I wouldn't be in favor of the USPTO denying those trademarks either.

"Knock knock"
"Who's there?"
"Polish burglar!"
   169. Avoid running at all times.-S. Paige Posted: June 23, 2014 at 06:28 AM (#4733294)
How did the Polish guy die raking leaves?

He fell out of the tree.

(I am part Polish American and can tell this joke with impunity.)
   170. Fancy Pants Handles lap changes with class Posted: June 23, 2014 at 07:01 AM (#4733297)
Years ago, I asked a Canadian about this. He said "I don't understand your question. We use 'Canuck' like you use 'Yank'", to which I replied "Yea, but we use 'Canuck' like we use 'N!gger'".

I've always firmly believed that I have no right to decide what offends you; still, I'm uncomfortable calling someone a Canuck.

If it makes you feel any better, over here, we use 'Yank' like you use 'Canuck'.
   171. You Know Nothing JT Snow (YR) Posted: June 23, 2014 at 07:58 AM (#4733307)
I'm sure the word Polack is used as a slur a lot more often than Redskin has ever been used as a slur.


The key is not letting any Polacks hear you say it, which is why we refrain from saying that word until bowling league nights.
   172. Howie Menckel Posted: June 23, 2014 at 08:22 AM (#4733314)

"So, rename them the Washington Warriors, keep the logo. Everyone good?"

It's too clever for Snyder to ever do this. It would end the "redskin is a racist term" issue, and place them into the "there's lots of us kind of native American nicknames, but you can't kill us all!" territory. A segment of the public would remain on the warpa... I mean march, but the rest would get on with their lives....
   173. Fancy Pants Handles lap changes with class Posted: June 23, 2014 at 08:40 AM (#4733331)
They should move the team to London, and rename it the Redcoats.
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