Monday brought a new twist in the Washington NFL team’s legal quest to preserve its racist name: Attorneys for the team filed a lawsuit against the U.S. Patent and Trademark Office, alleging that the USPTO’s cancellation of the team’s “Redskins” trademark violated its First Amendment right to free speech. This argument is a desperate move by a cynical man to maintain a monopoly on an offensive ethnic slur. It is also probably correct.
Under current federal law, the USPTO may not register “scandalous” or “immoral” trademarks, or those that “disparage … or bring into contempt or disrepute … institutions, beliefs, or national symbols.” These rules may sound quite reasonable in theory. But in practice, they give the USPTO carte blanche to block any trademark it simply doesn’t like. Sometimes, the office’s decisions seem borderline homophobic—like when it rejected Dykes on Bikes’ application for a trademark. Sometimes they seem merely arbitrary—like when it refused to register “1-800-JACK-OFF” but agreed to register Jack Off Jill because the latter trademark “relates at least in part to the nursery rhyme involving Jack and Jill, and therefore creates a double entendre.”
It’s precisely these kinds of capricious, potentially ideological decisions we don’t normally allow the government to make in the realm of speech. The USPTO argues that trademarks are different from normal expression, viewing them as a property right that only exists by the grace of Congress and is thus subject to heavy regulation. (The Supreme Court has held that Congress has vast discretion over the expression that it enables and funds.) Moreover, companies can still use a canceled trademark; they are only barred from claiming a monopoly on it. At most, the government insists, a canceled trademark deprives companies of profit, not freedom of speech.
This argument, however, ignores the obvious fact that a company whose trademark is revoked is almost certain to change its name—meaning trademark revocation is, at bottom, government coercion of speech. (For that reason, the American Civil Liberties Union strongly opposes the USPTO’s current guidelines.) Every civil libertarian should be bothered by a law that gives government officials the ability to sift through expression to decide which is “immoral” or “disparag[ing]” and which is socially acceptable. An enlightened USPTO may be trusted to use these guidelines to block only truly derogatory slurs. But the current rules are broad enough to grant a future, less scrupulous USPTO the power to play morality police, revoking every trademark that violates its examiners’ personal sense of decency.
There’s an easy solution here. Congress needs to revise federal law to bar only those trademarks that are outrageously disparaging toward minorities or women. The “scandalous” and “immoral” rules have got to go, as does the hazy language about protecting “beliefs” from “disparage[ment].” As the Supreme Court has acknowledged, the government has an overwhelming interest in protecting disadvantaged classes of citizens from denigration and discrimination. Congress should give the USPTO power to keep such denigration out of trademark law and leave it at that. Until it does, the Washington NFL team will no doubt obnoxiously boast that it is boldly defending freedom of speech. And, irksomely, it won’t be entirely wrong.