Law | Opinion | Sports

Room for Debate: Trademarks for racist and disparaging names

Wednesday, May 4, 2016

National Congress of American Indians President Brian Cladoosby sports a "Rethink" t-shirt. Photo from NCAI

With the U.S. Supreme Court being asked to consider whether offensive names can be used as trademarks, The New York Times asked a group of scholars and commentators to weigh in on the issue.

On one side of the debate people like professor Ashutosh Bhagwat. He argues the federal government should not be in the business of determining whether the names employed by Washington NFL team or a band from Oregon known as The Slants are derogatory.

"Repulsive as the Redskins name and trademark are -- The Slants case is a more complicated story -- I firmly believe that banning the registration of disparaging trademarks is unconstitutional," Bhagwat argues.

One the other side are people like professor Christine Haight Farley. She believes trademark law advances a legitimate purpose -- distancing the government from disparaging words -- while respecting the free speech rights of citizens.

"For 24 years, Native American leaders have sought to deny the Washington area football team federal recognition of their racist trademark," Farley write. "That high-profile racism is damaging enough without the government literally placing its seal of approval on the trademark."

Professor Sonia Katyal can see both sides of the issue -- minority groups often reclaim terms that were once considered offensive. But she also argues that trademark law should protect people who are targeted by certain symbols.

"The Washington Redskins brand, for example, implicates a painful slur that has – to my knowledge – never been reclaimed, or even suggested as a symbol of pride by Native Americans," she writes.

Columnist Emil Guillermo also detects a difference between The Slants and the racist sports mascot. The Supreme Court, if it accepts the petitions from the band and the team, could help clear up inconsistencies. he writes.

"A more consistent interpretation of the law would allow the government to deny trademarks on disparagement grounds, while keeping the right to free speech intact," said Guillermo, who doesn't believe groups like the Washington team should be able to "profit from ignorant racism."

Another professor, Megan M. Carpenter, also thinks there are some inconsistencies in the application of trademark law. Standards and morals are constantly changing but the government hasn't always kept up, she states.

"It is easy to see how certain marks may offend," Carpenter says. "But it’s not the business of trademark law – and certainly not within its capacity – to determine the boundaries of that morality in the marketplace."

The Washington team filed the petition in Pro-Football, Inc. v. Amanda Blackhorse on April 25. A response from the Native youth who are part of Blackhorse v. Pro Football, Inc is due May 26.

The petition involving The Slants -- Lee v. Tam -- was filed by the government on April 20. A response from the band is due May 20.

There is no guarantee that the Supreme Court will accept either case but team's petition presents an unusual situation for the justices. The 4th Circuit Court of Appeals has yet to rule on the matter but the team is hoping it can capitalize on a victory won by The Slants in the Federal Circuit Court of Appeals.

Get the Story:
Megan M. Carpenter: Trademark Law Promotes Fair Competition, Not Morality (The New York Times 5/4)
Christine Haight Farley: Trademark Restrictions Permit Free Speech Without Approving Offensive Speech (The New York Times 5/4)
Sonia Katyal: Trademark Officials Must Distinguish Between Irony and Offense (The New York Times 5/4)
Ashutosh Bhagwat: Banning Trademarks Called Offensive Violates Free Speech (The New York Times 5/4)
Emil Guillermo: Government Shouldn’t Help Trademark Owners Profit From Hate (The New York Times 5/4)

Also Today:
Supreme Court Could Weigh In on Redskins Trademark Case (The New York Times 5/3)