Last week, the Washington Redskins lost a big one against the U.S. Patent and Trademark Office (“USPTO”) when the Office voted to cancel its trademark stemming from a challenge brought by a group of Native Americans who were offended.  The source of the USPTO’s power to take this action is the Lanham Act, which prohibits the registration of marks that are viewed as “scandalous and disparaging.”  “Scandalous” marks are viewed from the perspective of the general public; whereas “disparaging” marks are viewed from the perspective of a particular person, group or institution.

The history of what has been determined disparaging is as fascinating as overtime at the Super Bowl.  The USPTO refused to register “Moonies” for novelty dolls whose pants dropped to their ankles, because it found the mark to be disparaging to members of the Unification Church founded by Sun Myung Moon.  “Squaw,” “Heeb,” and “Khoran” were likewise found to be disparaging and therefore not appropriate for registration.   Interestingly, if the trademark is deemed to be self-deprecating, it can be registered.  Examples are “Dykes on Bikes” and “Queer Eye for the Straight Guy.”  However, the USPTO denied registration for names such as “Nigga,” sought by comedian Damon Wayans for an entertainment company and “The Slants,” sought by an Asian American band.

Why does the government get to decide what is offensive and what is not?  The Constitution does not allow taxpayer money and government protection to go to discriminatory names and trademarks.  But where is our First Amendment right to be offensive?   “Jet” and “Ebony” are long-established African-American publications.  But those names may offend some groups who consider them to be a derogatory depiction of skin color.  “Sambo’s,” “Beaners,” “Cracker Jack” and “Aunt Jemima” are all potentially offensive trademarks.   Here are some other trademarks that have not been tackled by USPTO:  “Dago Swag,” “Kraut Kap,” “You Can’t Make a Housewife Out of a Whore,” and “Blanco Basura” (white trash in Spanish).  And the one that I personally find to be offensive is “Hooters.”  The owl logo doesn’t save it for me.  I know what the concept is all about and it’s not about wise birds.  If a bird logo saves the mark from being derogatory to women, then I suggest that the Redskins change their logo to a redskin potato. 

Wouldn’t it be better for the Government to stay off the field?  If the Redskins offend enough people, the Team and League will suffer financially and the market will have sacked the moral question, leaving the federal bureauracy on the sidelines.  Let’s continue the conversation in the public arena regarding what offends and what does not.  Let the people decide who wins and who loses by taking this battle off the Government’s artificial turf.

This post was written by Karen Conti: Partner