When the U.S. Patent and Trademark Office issued a decision yesterday in favor of cancelling six trademarks registered by the Washington Redskins, critics saw the “landmark” decision to be indicative of an administration perennially on a mission to “find another federal agency to weaponize against its opponents.” The pseudo-judicial veneer on the bureaucratic act seemed to line up with such caricatures of politicized overreach, as did the opinion’s strong wording: “It is difficult to justify a balancing of equities where a registrant’s financial interest is weighed against human dignity.” But legally speaking, the decision was neither particularly important nor unusual.
The 2-1 decision was issued by the Trademark Trial and Appeal Board, a body within the USPTO that deals with cases lodged against trademarks that violate the laws under which the USPTO operates. The plaintiffs in this specific case claimed that the Redskins trademarks violate the federal law known as the Lanham Act, which requires that no trademark constitute “disparagement.” The details of interpreting “disparagement” are left to the judgment of the board, which drew upon previous cases to conclude that the trademarks had to be explicitly found disparaging by a “significant composite” of the relevant group, and that the owner of the trademark had to explicitly associate the trademark with that group.
That first requirement’s “significant composites” proved the key problem. In the majority opinion, Administrative Trademark Judge Karen Kuhlke explained that the views of the overall American public were not the central concern, but rather the views of Native Americans in particular. A “significant composite” of Native Americans did not have to be a statistical majority, either. Rather, the board judged that the 30 percent of Native Americans administratively represented by the National Congress of American Indians in 1993, when the organization adopted a resolution declaring the term (and team) “Redskins” offensive, would be sufficient.
All this is in keeping with the normal responsibilities of trademark judges. For example, in the opinion, Kuhlke cited the case of Squaw Valley Ski Resort, which was deemed the legitimate owner of trademarks using the word “Squaw” despite the term’s disparaging connotation as a derogatory term for Native American women; in that case, the resort used the word innocuously as part of a geographical designation unconnected with ethnic implications. On the other hand, trademarks have been refused for innocuous words like “doughboy” when used disparagingly in context, as in a case where a company attempted to sell medicine for venereal diseases by putting American soldiers (“doughboys”) in the logo. Like all other trademark cases, the terms in question are extremely subjective. But the appeals process in place provides a check on bureaucratic judgment calls, and actual judicial bodies are involved after the Trademark Trial and Appeals Board: the Washington Redskins, for instance, plan to appeal yesterday’s decision to a U.S. district court for further review.
Legally, the team retains trademark protection during the appeals process, which is likely to take years and may well end in a positive outcome for the team just as it has before. Even if the decision holds, the revenue-sharing model of the NFL will minimize economic losses due to bootleggers, and common-law or state legal remedies could protect the “Redskins” trademarks further. However, the decision would set a precedent for Native American plaintiffs to bring cases against other registered trademark holders like the owners of the Cleveland Indians and its logo, Chief Wahoo.
The case is yet another example of a failed attempt to bureaucratically administer cultural change. Because of its popularity, economic importance, and blatant imagery, the Washington Redskins name controversy has been co-opted as a stand-in for American cultural attitudes toward the millions of citizens who identify as Native. But the patent office is not the arena for such a debate, as yesterday’s 18-page dissent by Administrative Trademark Judge Marc Bergsman pointed out. Profiting off the Washington Redskins’ name does not need to be illegal to be immoral, which is the real argument advocates for Native Americans are making. The same bureaucratic body that patented getting cats to chase laser pointers is never going to be able to adjudicate that dispute.