Your Thoughts Regarding H.R. 1278 - the "Non-Disparagement of Native American Persons or Peoples in Trademark Registration Act of 2013"?
The text of H.R. 1278, entitled "Non-Disparagement of Native American Persons or Peoples in Trademark Registration Act of 2013," may be found here. The Bill was introduced on March 20th by U.S. Congressman Eni F.H. Faleomavaega of the Territory of American Samoa. The law would require cancellation of existing trademark registrations for trademarks using the term "redskin" in reference to Native Americans. It would also deny registration for new trademarks so using the term "redskin." More details may be found here. Your thoughts?
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posted by John L. Welch @ 3/28/2013
10 comments
10 Comments:
The Lanham Act, as is, effectively balances allowing owners to select any mark and not allowing disparaging marks to register. I am of the thinking that the REDSKINS marks (for the NFL team) are going to be cancelled as a result of the Blackhorse v. Pro Football, Inc. case. So rather than amend the Lanham Act, the case should be allowed to play out. In the event the plaintiffs once again are not successful, then the legislation would be more timely and appropriate.
Are there any disparaging words that are statutorily barred from registration? I am not aware of any.
As an Alumnus of Miami University, and long-time proud supporter of its sports and academics under the Redskin mascot -- which is now Redhawk -- I have never intended nor felt that the use of this term was disparaging. Instead, I think it should be "how" the term is used that receives scrutiny. However, I understand that this is another instance of legislating PC.
I didn't realize that Congress had solved all of the more important and pressing problems affecting the people of the United States such that it has the time to consider, debate, and pass this kind of legislation. When everyone in America has a job and has food on the table, then maybe we can spend time on this.
First, as to the word mark, prohibiting a particular word after it has registered smacks of a "bill of attainder"....
Next, how relevant is registration for what would have to be considered a well known mark? I find nothing in the bill which would affect the teams common law rights under the Lanham Act.
Finally, I would note this bill only addresses the word mark, I would venture that the design aspects of the team's marks are at least as valuable as the word mark. Being from Cleveland (and being a very big baseball fan) I realize a mascot/design mark has the potential to be at least as offensive as a word.
At the end of the day based on equity and good conscious, the exising Registrants and Applicants using the "Redskins" term should voluntairly either surrender their Regs. for cancellation and/or abandon their applns. and call it a day.
It seems to me that Rep. Faleomavaega should be told of an easier (and in these money-scarce times, more palatable) way of reaching the same end. Take a cue from Sen. Baucus and tweak the USPTO's budget. See, e.g., http://thettablog.blogspot.com/2009/02/montana-senator-max-baucus-announced.html
This is not a trademark law issue; this is a constitutional law (due process) issue. The question for the courts is, can Congress selectively deprive a person's property (existing trademark registration) in the name of political correctness alone?
It's widely recognized that words that are not offensive can become so over time. It is not so widely recognized that the process works the other way as well. Especially when there are interest groups determined to make sure their pet project remains relevant. There is no worse fate for an activist group than the successful acheivement of its founding purpose.
"Redskins" was once a disparaging term. It seems unlikely that it was considered offensive when adopted by the Washington football team. (From a branding standpoint, what sense would that make?)
I don't see how anyone could claim with a straight face that today the word "Redskin" is used disparagingly or that its users have any racist intent. In fact, as used today, it has largely lost it's Native American connotation altogether. Upon hearing the word "redskin," most people think not of indians, whether positively or negatively, but of the football team.
(I posted a version of these comments earlier)
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 really 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 issued 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 of the statute 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,” 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 on the basis of "disparagement." 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 ("obscene," or perhaps something else the courts have looked at, maybe under FCC regs. dealing with broadcast TV--just throwing out some suggestions).
The justification for the disparagement refusal was exceedingly weak from the beginning and mostly foreign to trademark law. If a mark successfully serves as a source identifier in the market, it is not the government's place to put a stop to it. But the Lanham Act is what it is, and should not be used in the furtherance of newly discovered ways to socialize trademark law and disrupt proper source identification that's proven workable in the marketplace for decades.
In the day and age of viral communication, one can start a viral campaign to render an existing trademark a disparaging term. What if I were to go viral and make up a verb "Coca Cola" to designate white supremacy, as in: "The other WASPs and I Coca Cola'ed a Samoan guy." Can I next move to cancel their mark as disparaging to Samoans?
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