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There's Never Been A Trademark As Offensive As Redskins

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REDSKINS
A Washington Redskins football helmet lies on the field during NFL football minicamp, Wednesday, June 18, 2014, in Ashburn, Va. The U.S. Patent Office ruled Wednesday, June 18, 2014, that the Washington Redskins nickname is "disparaging of Native Americans" and that the team's federal trademarks for the name must be canceled. The ruling comes after a campaign to change the name has gained momentum over the past year. (AP Photo/Nick Wass) | ASSOCIATED PRESS
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The U.S. Patent and Trademark Office is clearly not a big fan of the Washington Redskins.

The normally sleepy U.S. Trademark Trial And Appeal Board, an arm of the PTO, made headlines on Wednesday when it canceled six trademarks registered by the team. Only twice on record has the office tried to use its power to strip away a trademark for being offensive to an ethnic group, and both cases involved the Redskins.

The office's first attempt to stop the team from using the term, which many consider outdated and offensive, was in 1999. That decision was later reversed, and the office's new one might be also. But the PTO seems to think it's worth another try anyway.

“It’s almost like they’re saying, ‘As a matter of conscience, we are going to give our view on this, even if we recognize that it might be overturned,’” said Barton Beebe, a professor of intellectual property law at New York University.

The board's decision was such a statement that the notoriously conservative Wall Street Journal accused the body of taking a political stance, writing, "even the lowly patent clerks are following liberal orders and deputizing themselves as George Custers to drive the Washington Redskins out of America."

The latest effort could be more damaging to the Redskins, at least in terms of publicity, because it happened in the age of social media -- which has amplified the decision and turned it into huge news.

“The decision does not legally force the team to change its name, but I think it adds to the pressure,” said Rebecca Tushnet, a professor focusing on intellectual property at Georgetown University’s Law Center. Neither she nor Beebe could think of another case, aside from those involving the Redskins, in which a trademark was canceled for being disparaging.

But even if the PTO lets some offensive trademarks stand, it doesn't allow for new ones to be created. The 1946 Lanham Act bars the registration of trademarks that are deemed disparaging. There aren't too many common ethnic slurs trademarked these days, based on a quick search of the USPTO database. Still, there are a few live marks that use the word “cracka” and many using the word “slut.”

Disparaging trademarks are denied registration pretty regularly, according to Beebe. For example, the office recently denied a push to register the phrase “Stop the Islamization of America," USA Today reported.

When the rare cancellation does happen, it’s typically for things like lapse of use or deception, said Tushnet. In fact, according to USPTO's online records, which only go back to 1999, the only other time the PTO has wielded its power to cancel a trademark for being offensive was in April 1999, in another case against the Redskins. In that case, called Harjo v. Pro Football, Inc., an appeals court threw out the ruling mostly on the basis that the petitioners had waited too long to assert their rights.

This new case uses much of the same evidence as the Harjo case, and it’s likely lawyers will argue in appeal that so much time has passed that it's hard to prove that the word "Redskins" was disparaging to Native Americans at the time the trademarks were registered. Courts consider how a word was used during the time it was trademarked when reviewing these cases.

“I’ve never seen a case of this nature that has had to go back in time to cancel a mark that was registered 40 years ago,” Beebe said. “We’re talking about the meaning of the term in the mid-1960s.”

Andrew Baum, a partner at the law firm Foley & Lardner who focuses on intellectual property, said the case's notoriety may have influenced the PTO's decision to take a stand against the trademarks.

“I suspect that they were trying to decide the case in terms of contemporary sensibilities, and as the defense points out that’s not the standard,” Baum said. “It’s unusual for the Trademark Trial and Appeal Board to deal with an issue that is so fraught with racial and ethnic sensitivity that is under such a big spotlight. These are trademark professionals, they are administrative-law judges that normally work in obscurity, and here they are in a case that gets decided and immediately The Huffington Post is calling for comments on it.”

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