Congressman Faleomavaega Introduces Bill To Cancel REDSKINS Registrations
On March 20th, U.S. Congressman Eni F.H. Faleomavaega of the Territory of American Samoa introduced H.R. 1278, entitled the "Non-Disparagement of Native American Persons or Peoples in Trademark Registration Act of 2013. [Press Release here]. H.R. 1278 would cancel existing trademark registrations for trademarks using the term "redskin." It would also deny registration for new trademarks using the term "redskin."
According to a briefing paper distributed to legislators, there are currently six trademark registrations and five pending trademark applications that would be affected by the bill. [Read more here]
Read comments and post your comment here.
posted by John L. Welch @ 3/22/2013
10 comments
10 Comments:
The "Indian Country" article refers to "heeb" as an anti-Jewish slur that was denied registration, but some ironic Jewish "hipsters" in Brooklyn re-purposed the term "hebe" and used an registered it as "Heeb" (without PTO objection) as the name of a magazine, and a symbol of in-your-face Jewish pride.
"HEEB" was found to be disparaging by the Board in In re Heeb Media, LLC, 89 USPQ2d 1071 (TTAB 2008) [precedential]. But you are correct that HEEB is registered for magazines. That one didn't get to the Board. Maybe it's ripe for cancellation?
BTW: keep your eye on the appeal of a refusal to register THE SLANTS for an Asian rock band. (Serial No.85472044).
I urge the Red Skins to pursue the due process (not free speech) issues with this bill, should it become law.
Political correctness is not good enough a reason to deprive anyone of their property, in this case ownership of a federal registration.
Ideally this shouldn't be brought before the Federal Circuit, whose judges are rarely prepared to seriously consider constitutional challenges.
I think we need legislative action but maybe of more universal effect.
First of all, maybe it's not too late to interpret Section 2(a) more realistically. If Congress said you can cancel a registration at any time under this section, could they have meant to freeze the time of proof to the time of registration, perhaps decades before a claim is brought? Doesn't make a lot of sense to be able to bring a claim decades after a registration but have to prove it as of the time of registration. Let's face it—this places a very difficult burden on the plaintiff, as it did in the Redskins case. The Court of Appeals recognized this in its laches ruling (“trial prejudice”). Maybe a court that has a serious look at 2(a) (I'm not sure any court has really decided this issue—they may just have stated or assumed the point without really deciding it) could look at the statute as a whole and interpret it in a manner that makes more sense—if you can cancel a registration at any time, then, like in most other cases, prove the claim as of the time of trial. Also, let's recognize that 2(a) (along with other parts here) was written in the present tense because it applies to examination practice, before a mark is registered. It was designed to instruct the Office on how to treat an existing application. A cancellation proceeding may be brought long after a mark is registered, so let's interpret the language accordingly. This interpretation would also take into consideration the fact that language changes and that a word or words that may not have been “scandalous” or disparaging in decades past, but now has become “scandalous” or offensive or disparaging. I think everyone can think of some word or words that may have been acceptable when we were growing up but now may be off-color or worse. One could argue that that is one of the purposes of 2(a)--to get off the register trademarks that have now become “scandalous” or disparaging.
As it is now, because one must prove, according to the TTAB, offensiveness or disparagement at the time of registration, the District Court and the Court of Appeals for the DC have used the doctrine of laches to bar presentation of these claims that should have ostensibly been brought long ago. But, does it really make sense to apply laches to people who have reached majority a long time ago but not to younger people. If that's the case, there never will be laches. One can always find someone who is the “right” age for objecting to a registration. Can this be the law? Seems like a charade to me. However, if one says that you can cancel a registration long after it issued because the mark has recently become offensive or disparaging, then laches would not usually apply.
However, if it is too late to reinterpret Section 2(a), then let's amend it by adding words such as “or becomes” at the appropriate place in the Section (“consists of, comprises or becomes...”) And while we're at it, let's get rid of some of the archaic language in 2(a) (“scandalous”--so 19th century) and either delete it or replace it with something more contemporary or maybe something the courts are more familiar with.
I think that's a good point by anonymous that it does not necessarily make sense to have the cancellation be based on the perception of the mark at the time of creation rather than at the time of challenge. But in the case of Redskins, I think the effect is the opposite of what anonymous appears to think.
Redskin was insulting at the time of creation but has lost all negative meaning since that time.
Tim: "Redskin" has only lost disparaging meaning in association with the football team. I don't think you can go around calling native Americans "redskins" without it being considered a slur.
I am astounded at how much time, effort and, no doubt, money these folks have put into trying to kill the Redskins registration over the years. If they put that into constructive effort, just think what they could have accomplished.
Special legislation for certain marks is nothing new. Examples: OLYMPIC marks, appellations of origin re wines and spirits. With that said, I would be more in favor of amending a statute with general applicability, as Anonymous suggests, rather than special legislation for each class of offended persons.
It is importsnt to remember that this issue focuses on what should be allowed on the primary trademark register for the United States of America. The importance of that means something to every trademark owner holding a federal registration. But it also has to mean something to the United States as a matter of policy. We are a country of inclusion. At least that is who we think we should be. So it would seem to follow that anything scandalous or pejorative should not be on the federal register. Use might be ok - but not registration.
On another note: Teams in national leagues change their names when they move cities, and when they don't move, so why can't RedSkins PR simply make a mark change a brillinat PR situation...
"Redskin was insulting at the time of creation but has lost all negative meaning since that time."
Apparently the term has negative meaning by virtue of the challenges and bill.
But piecemeal legislation should not be the way forward.
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