Minority of One blog

Should 'Redskins' lose trademark protection?

Two things strike me as clear from the U.S. Patent and Trademark Office's decision to revoke the trademark registration of the Washington Redskins on the ground that the name is disparaging to Native Americans.

The first is that the term is blatantly disparaging, and the team ought to drop it. For the owners to insist on clinging to a name that many if not all of the supposed honorees regard as offensive is impossible to defend. You can argue that naming a team the Braves or the Blackhawks is not insulting, but that's a different debate for a different day. You really can't make "Redskins" into a positive tribute.

The second, though, is that the government should not be deciding what's an acceptable name for trademark protection and what is not. If that practice is allowed, it gives the government broad authority to punish individuals and companies for their beliefs, which violates the spirit of the First Amendment that government "shall make no law . . . abridging the freedom of speech."

UCLA law professor Eugene Volokh agrees: "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."

So opponents of the name should use all means of pressure to induce the team to change the name -- boycotts, demonstrations, public denunciations, you name it. And I hope they get their way, the sooner the better. But for the federal  government to bring its hammer down because it disapproves of a name is wrong and dangerous.

 

CHICAGO

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