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Controversial Mascot Names in the News - USPTO Takes a Stand - Printable Version

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Re: A Blow to Native Pride and American Freedom - stupac2 - 06-20-2014

(06-20-2014, 02:21 PM)garvin link Wrote:
Quote:Can't there just be things we think are unacceptable to our society, that our duly elected government makes effort to prevent?

Not if you believe in free speech. And I absolutely do not trust our duly elected government to regulate free speech.

NOBODY IS REGULATING FREE SPEECH

For crying out loud, transforming "the government took away a government-granted monopoly because it was deemed offensive" into "the government is interfering with free speech" is mind-boggling ludicrous and everyone advancing that argument in here really ought to be ashamed of themselves for conflating those things. The ruling does not prevent anyone from using any word anywhere, it just revokes certain legal rights they had to prevent other people from using that word.

Do some activists want to go further with it? Maybe, but no one with any real power is listening to them or thinks they have any case whatsoever. The limit of the government's power to regulate this issue is what they just did. There's no slippery slope*. Although I suppose Congress could pass some legislation that revokes other NFL privileges until they change it, that seems unlikely and would be a much better case of the government meddling where it doesn't belong.



*Also, when did the slippery slope stop being a fallacy that every intelligent person was loathe to invoke? I'm seeing it a lot lately and it should never, ever, ever come up. You might as well be saying "But think of the children!"

Re: A Blow to Native Pride and American Freedom - oman - 06-20-2014

I don't understand how a government agency cancelling a registration "because the term is disparaging to Native Americans" is not considered a free speech issue.  If a private entity fired someone for saying something disparaging, sure.  That's not government action.

I'm not saying that ultimately a court would rule that this is speech protected by the Constitution.

But government action punishing someone for the disparaging aspect of words?  I think your all caps big font response is a bit much, stupac2.

Re: A Blow to Native Pride and American Freedom - CTcard - 06-20-2014

(06-20-2014, 12:35 PM)martyup link Wrote:... My fear is that this ruling will put us on a slippery slope that may lead a banning of such terms as "nerd".  When the government starts deciding which words society cannot use, we have lost at least a part of our First Amendment rights. 

My better nature tells me to stay out of this, but you have hit upon one of my own, perhaps ridiculous, pet peeves. 

The following is a complaint about types of argument - not a comment upon the wisdom of banning "Redskins" as a trademark.


I usually hate the slippery slope argument. A good fraction of the role of government, the judiciary in particular, is explicitly about drawing lines and defining how far we go on any slope. Very few issues are so black and white that the proper course of action is all in or all out. That is the primary reason that ad absurdum arguments are absurd(um). 

[Let me digress to note that the use of the formal logical construct reductio ad absurdum is perfectly fine, but rather I object to the more colloquial use of the term as extending an original proposition to ridiculous extremes.]

I think it is also usually a red herring. In this case, you state that the current action by the patent office leads you to fear the banning of the word "nerd". Somehow I don't think you really feel that there is a danger that the word "nerd" will be banned by the government. It would appear that you don't like the actual action that occurred, so argue that on its own merits.


Your last sentence brings in a related logical failing; over-broadening of the issue at hand.
"When the government starts deciding which words society cannot use, we have lost at least a part of our First Amendment rights."

In this case the government is deciding which terms can be used as a trademark - not which terms can be used in speech (i.e. First Amendment). Those are different things and the government has done the former as long as there have been trademarks - with a particular emphasis on not allowing trademarks that mislead consumers. Few people object to that aspect of deciding which words can be used as trademarks, at least as a concept. More people object to the part of the same law that refers to immoral or disparaging trademarks, and the present case may be an over-reach by the government in trying to ensure morality and civility. But that is the objection - not that in concept trademarks cannot be regulated for content.

More broadly, the only case I can think of where the US government bans individual words in a first amendment sense is that there are indecency laws with respect to print and broadcast media. For the most part the direction our government has been moving is to remove these restrictions - for example I think that both the George Carlin comedy bit on the seven words you cannot say on television, and the follow-up Supreme Court ruling on WBAI's broadcast of the bit, are both now effectively defunct; at least based upon what I see on TV. 
Are there other cases?

EDIT: I see after writing this there have been a few similar comments. I agree with Oman that equating regulating toxic waste dumping with regulating words is bad logic and it appears I agree with stupac that the term "slippery slope" is in general a poor argument - in particular if the mechanism of going from A (the actual issue under consideration) to B (the bad outcome) is not clear and inevitable [though I dislike the all caps approach].

Re: A Blow to Native Pride and American Freedom - martyup - 06-20-2014

(06-20-2014, 02:45 PM)stupac2 link Wrote:*Also, when did the slippery slope stop being a fallacy that every intelligent person was loathe to invoke?

According to Wikipedia:

"The core of the slippery slope argument is that a specific rule or course of action is likely to result in unintended consequences and that these "unintended consequences" are undesirable (and, typically, worse than either inaction or another course of remediation). This criticism is a consequentialist criticism - interested in consequences or outcomes or results of a course of action - and does not impugn the character or intentions of the one(s) offering the "slippery slope" argument(s), the basis or bases or concerns underlying the offering of the arguments against a rule or course of action, nor the legitimacy of arguing against any specific rule or course of action."

It's only a fallacy is there is no basis to assume that the action is UNLIKELY to result in bad unintended consequences.  This decision comes on the heels of other government actions tending to target citizens for their religious and/or political beliefs (e.g., the IRS targeting of conservative groups).  Many times the government action is taken in the name of some obscure law or regulation.  If you heard Harry Reid crowing about this decision on the floor of the Senate, you would understand the strong desire of some in government to walk all over the Constitution in order to right perceived wrongs in American culture.  I contend that there is a strong basis to assume that further more onerous infringements on First Amendment rights will follow this government agency ruling.

Re: A Blow to Native Pride and American Freedom - Cowboy1 - 06-20-2014

Good thing you are there to let them Redskins know when they are being honored and when there are taking a blow to their pride.  Would you be so concerned about the trademark if it was for the Washington Niggers? 

Re: A Blow to Native Pride and American Freedom - CornFed - 06-20-2014

I think you are in a distinct minority if you draw equivalence between the two racial epithets.  For one thing, many would argue (and have) that Redskins is not a derisive term at all.  Just because we might disagree with them does not make them wrong.  And I seriously doubt there are many who would not designate "nigger" as an offensive and repugnant term.  I also doubt you would get a sizable portion of African-Americans polling in support of the use of such a mascot name.

As to "slippery slope" - it may be hackneyed and trite, but to describe it generally to be a fallacy is argumentative and overstated.

Re: A Blow to Native Pride and American Freedom - BostonCard - 06-20-2014

(06-20-2014, 02:56 PM)oman link Wrote:I don't understand how a government agency cancelling a registration "because the term is disparaging to Native Americans" is not considered a free speech issue.  If a private entity fired someone for saying something disparaging, sure.  That's not government action.

I'm not saying that ultimately a court would rule that this is speech protected by the Constitution.

But government action punishing someone for the disparaging aspect of words?  I think your all caps big font response is a bit much, stupac2.

Just to be clear, the power of the government to grant or revoke trademarks is not rooted in the first amendment, but rather in the commerce clause of the Constitution, which states that Commerce has the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."  A trademark is considered an exercise of commerce, and falls within the Commerce clause, unless used exclusively within a state.

Since none of this is to say that the Redskins cannot continue to use their name, I completely fail to see how this represents a suppression of speech.  Yes, there are some who would prefer the Redskins rename themselves (I among them), and some who are hoping that the government will put more pressure on the NFL in general and the Redskins in particular, for example, by threatening to revoke the antitrust exemption the NFL owns (personally, I believe that exemption should be revoked, but it should not be used as a means to threaten the Redskins).

BC

Re: A Blow to Native Pride and American Freedom - 97fan - 06-20-2014

(06-20-2014, 03:24 PM)martyup link Wrote:I contend that there is a strong basis to assume that further more onerous infringements on First Amendment rights will follow this government agency ruling.

You may fear that First Amendment rights will be further eroded as a result of this trademark ruling. But the actual trend in First Amendment jurisprudence is in the opposite direction -- it's toward an expansion of free-speech rights. The most obvious recent example is the Citizens United decision, which was preceded by a line of political-speech decisions that laid the groundwork. But I think it's true more broadly, too. Is there any type of speech (religious, commercial, press freedom, etc.) where the trend has been greater restrictions over the last few decades? I don't think so, though I'm sure someone here will correct me if I'm wrong.

Re: A Blow to Native Pride and American Freedom - Cowboy1 - 06-20-2014

Trademark protection was set aside because Redskins was found to be disparaging to a group.  It seems obvious to me that a similar ruling would be issued if the team was the Washington Niggers.  While some may disagree that the terms are disparaging of anyone, I do not hear people saying "niggers" in normal conversations because the term is not socially acceptable in my circles (I believe because it is disparaging).  Perhaps it is acceptable to others. 

Re: A Blow to Native Pride and American Freedom - CornFed - 06-20-2014

It seems to me that it is correct to point out that the removal of trademark protection is not a direct assault on free speech.  In fact, it appears that no restriction of the use of the term is effected.  I think also that it would be disingenuous to assert that no impairment in value is intended by this action.  That impairment, if achieved, has the effect of diminishing the use of the trademark and/or the adoption of an alternative symbol.  The end result that is hoped for, then, is the curtailment of speech.

Re: A Blow to Native Pride and American Freedom - oman - 06-20-2014

(06-20-2014, 04:13 PM)Boston Card link Wrote:Just to be clear, the power of the government to grant or revoke trademarks is not rooted in the first amendment, but rather in the commerce clause of the Constitution, which states that Commerce has the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."  A trademark is considered an exercise of commerce, and falls within the Commerce clause, unless used exclusively within a state.

No issue with this.

Quote:Since none of this is to say that the Redskins cannot continue to use their name, I completely fail to see how this represents a suppression of speech. 

If a government agency puts on onerous surcharge on newspapers, would you consider that a suppression of speech?  If a government statutes allowed companies in competition with each other to sue for damages if a competitor made true but critical statements about the competitor's product, would that be a suppression of speech?  If the government taxed all professional soccer organizations in the US when they used the term "football" in any of its advertising or trade documents, would that be a suppression of speech?  Of course.  Now whether not its a first amendment issues is a separate question, because not all speech is protected. 


Re: A Blow to Native Pride and American Freedom - oman - 06-20-2014

(06-20-2014, 03:11 PM)garvin link Wrote:And I'm sorry you think slippery-slope arguments are an embarrassment, but I don't. Look how the Patriot Act, passed in what I'm sure was good faith in the wake of an agonizing attack on the United States, has mutated into an excuse for the NSA to plunder through everybody's communications at all times. In discussion of basic rights, slippery-slope arguments get right to the heart of the issue. Hardly anybody would have cared about the rights of Nazis to march in Skokie. The question of who might get banned next if the government was given that power was a perfectly sensible one.

Yep.  I tried to type something like this but could not get the words out.  Glad I gave up and let Garvin do it.

Re: A Blow to Native Pride and American Freedom - needle - 06-20-2014

Do the Redskins have any recourse to appeal this ruling?

Re: A Blow to Native Pride and American Freedom - BostonCard - 06-20-2014

(06-20-2014, 05:57 PM)oman link Wrote:[quote author=Boston Card link=topic=10129.msg91400#msg91400 date=1403306027]

Just to be clear, the power of the government to grant or revoke trademarks is not rooted in the first amendment, but rather in the commerce clause of the Constitution, which states that Commerce has the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."  A trademark is considered an exercise of commerce, and falls within the Commerce clause, unless used exclusively within a state.

No issue with this.

Quote:Since none of this is to say that the Redskins cannot continue to use their name, I completely fail to see how this represents a suppression of speech. 

If a government agency puts on onerous surcharge on newspapers, would you consider that a suppression of speech?  If a government statutes allowed companies in competition with each other to sue for damages if a competitor made true but critical statements about the competitor's product, would that be a suppression of speech?  If the government taxed all professional soccer organizations in the US when they used the term "football" in any of its advertising or trade documents, would that be a suppression of speech?  Of course.  Now whether not its a first amendment issues is a separate question, because not all speech is protected.
[/quote]

But there is no surcharge on the Redskins.  Nobody can sue the Redskins for damages for being called the Redskins.  The government is not taxing the Redskins for using the word "Redskins".  None of your examples apply here.

The loss of registration doesn't even prevent the Redskins from suing infringers under common law, since there is no requirement that the trademark be registered in the United States.  Yeah, their protections aren't as strong, but it is unclear that the Redskins are going to be significantly harmed by the decision.  The decision is more symbolic than anything else.

BC

Re: A Blow to Native Pride and American Freedom - BostonCard - 06-20-2014

(06-20-2014, 06:16 PM)needle link Wrote:Do the Redskins have any recourse to appeal this ruling?

Yes, of course.  All USPTO decisions are subject to judicial review if the Redskins wanted to avail themselves of the court system.

BC

Re: A Blow to Native Pride and American Freedom - oman - 06-20-2014

(06-20-2014, 06:24 PM)Boston Card link Wrote:But there is no surcharge on the Redskins.  Nobody can sue the Redskins for damages for being called the Redskins.  The government is not taxing the Redskins for using the word "Redskins".  None of your examples apply here.

The loss of registration doesn't even prevent the Redskins from suing infringers under common law, since there is no requirement that the trademark be registered in the United States.  Yeah, their protections aren't as strong, but it is unclear that the Redskins are going to be significantly harmed by the decision.  The decision is more symbolic than anything else.

BC

So just to be clear, in your opinion, there is no financial negative effect on the organization, and they are in the same position financially as the Cowboys, Vikings or Ravens? 

Re: A Blow to Native Pride and American Freedom - CornFed - 06-20-2014

To follow on Oman's point, what then is the value of trademark protection in general if taking it away has no impact?

Re: A Blow to Native Pride and American Freedom - BostonCard - 06-20-2014

My guess is that they come out ahead by the bur ha ha.  The people who buy Redskins merchandise obviously (by the fact that they buy the merchandise) don't care that the name is offensive.  And the true fans might buy more to send a message in support of the team.  That being said, one analysis suggests that the Redskins do stand to lose "in theory".

http://sportsillustrated.cnn.com/nfl/news/20140618/washington-redskins-trademark-cancelled-uspto/

Quote:As a result of the cancellation, the Redskins have far more limited federal trademark protection to stop counterfeits and other businesses from commercially exploiting their name in selling merchandise and apparel. In theory, the Redskins and their owner, Daniel Snyder, could lose millions of dollars as a result of the cancellation. Revenue sharing by NFL teams on licensing contracts means the 31 other franchises could stand to lose millions as well.

That being said, unlike a right to free speech, there is no constitutional right to trademark protection. The government is not obligated to provide trademark protection, except in accordance with the US code (which I cited, and which specifically says that offensive trademarks are disallowed, as are other categories, for example geographic trademarks regions Champaign). Trademarks exist primarily for the benefit of the consumer, not the benefit of the mark owner.  From the wikipedia page (http://en.wikipedia.org/wiki/Trademark#Other_aspects): "Trademark law is designed to fulfill the public policy objective of consumer protection, by preventing the public from being misled as to the origin or quality of a product or service. By identifying the commercial source of products and services, trademarks facilitate identification of products and services which meet the expectations of consumers as to quality and other characteristics."

There is little real danger that denizens of the Redskins will be misled into watching a second rate pro-am team take the field at the local high school field [insert your own joke here].

BC

Re: A Blow to Native Pride and American Freedom - rastaman85 - 06-20-2014

Can someone help me understand why it's okay to fight for a nickname that clearly offends people?

Re: A Blow to Native Pride and American Freedom - BostonCard - 06-20-2014

(06-20-2014, 10:12 PM)rastaman85 link Wrote:Can someone help me understand why it's okay to fight for a nickname that clearly offends people?

Because the right to say things that others find offensive is written into the Bill of Rights.

To be clear, I hate the Redskins name.  I personally find it offensive.  And I hope that Dan Snyder changes it.  I firmly believe that pro sports have the power to bring people together, so it pains me to see a name that is so divisive being used.  However, I do not dispute his right to have that name, as protected by the First Amendment of the US Constitution.

BC