Re: Re: Re: Re: Re: Re: Re: Well, as long as government is enforcing GOOD speech.....
> Mmmm, no. It's not an inappropriate use at all, it's > baked directly into the law. This isn't some new > end-around, it's been around forever.
Lots of things are 'in the law' that are regularly criticized on this site as being inappropriate and outside the purpose of IP law. How many articles have we had criticizing aspects of the DMCA here on TechDirt? Things like the anti-circumvention clause are 'baked directly into' that law and have been around forever, too. Doesn't mean it's an appropriate use of IP law and this site regularly points it out. So telling me "Well, it's in the law, so it must be cool" is a bit of a non-starter. I've never suggested that there isn't a clause in the trademark statute (probably added by some 'progressive' member of Congress as an amendment in exchange for favors) that allows the USPTO to make these silly rulings. I'm contending, much like TechDirt has done with the DMCA's anti-circumvention clause, that's it's not appropriate for the government to be using IP law in this manner, legal or not.
> Nobody said that was its "purpose", it's just the de facto > nature of a govt. granted privilege.
No, the grant of a trademark by the government to a business is not equivalent to a sanctification or endorsement of that business, no matter how many times you claim it is. Just like granting a liquor license doesn't mean the government is endorsing Hooters. Or granting a business license doesn't mean the government is sanctifying an adult book store.
> The term Redskin OBVIOUSLY is a disparaging term, as > has been cited in previous articles.
Whether it is or is not disparaging is not the issue and not an argument I'm making one way or the other. My contention is that it's none of the government's business, nor is it the appropriate role of government to be regulating such things. If the name of a business is offensive and disparaging, then the market will dictate the success or failure of that business.
> I don't think it's political correctness, > I think it's just that out-of-condition > cops are so common that they can be considered > normal.
No, it's the police unions that are the cause. The police unions (especially in Southern California) are very powerful and any attempt by the department to impose post-academy physical fitness standards with any teeth to them is rejected by the unions. None of their members want to get fired for being fat, so the union goes to work and protects them from it.
It's easy to see the unions' effect on this. Compare the general physical fitness level of cops in union-run departments to law enforcement officers where there are no unions. Federal agents are prohibited by law from unionizing and collective bargaining. How many fat, out of shape Secret Service agents do you see around the president? Not too many, right? That's because there's no union stopping the Secret Service from imposing strict physical fitness requirements on its agents.
> It would not be a retrial for the same > offense barred by double jeopardy, because > the double jeopardy clause only bars\ > reprosecution by the same sovereign.
Yes, that's how the Supreme Court ruled long ago, but it completely undermines the intent of the double jeopardy clause. The Founders clearly intended for citiznes to not have to worry about being prosecuted twice for the same conduct.
Playing legal word games about 'different soveriegns' and federal vs. state charges is just an end-run around the 5th Amendment, designed to give the government a second bite at the apple (you being the apple) if they don't like the first jury's decision or they feel publicly embarassed by losing the case against you.
Re: Re: Re: Re: Re: Well, as long as government is enforcing GOOD speech.....
Look, you and Masnick and all the others that regularly write for this site have consistently taken the position that using IP law for purposes for which it was not intended, or to do an end run around the law to accomplish something via IP that couldn't otherwise legally be accomplished is an inappropriate abuse of IP law.
Yet that's exactly what you're advocating here. The purpose of trademark law is to prevent consumer confusion as to the origin of a product in commerce. That's it. It's purpose is not to confer a government endorsement or 'sanctification' (your words) of the business that receives the trademark. Nor is it the purpose of trademark law for the government to prevent people from being offended by a business's name. Based on every other position you guys take on the issues surrounding IP law, I honestly can't believe you'd be in favor of giving the government that power, but apparently you, at least, are.
That's fine. It's your opinion and you're entitled to it, but don't pretend it doesn't fly in the face of the stance you and this site have taken on the issue of IP law abuse in the past. Apparently IP law abuse is fine when you're heart's in the right place and your intentions are pure. Or something like that.
Re: Re: Re: Well, as long as government is enforcing GOOD speech.....
Looks like Redskins Hog Rinds can't sell its product the way they want while enjoying the same trade monopoly over its name as every other business.
They either have to alter their speech or handicap themselves by going without the economic protections that their competitors enjoy. And this precedent, of course, can cause others to refrain from 'speaking' the way they might otherwise choose to, resulting in a chilling effect.
Re: Well, as long as government is enforcing GOOD speech.....
> I find it offensive when people (the freedom-loving > denizens of TechDirt for instance) who (rightly) find so > much government action objectionable, and who so > frequently (and rightly) worry about the growth of > government power, are perfectly fine with the use of > such power when it fits their own preferences, prejudices, > or favorite means of generating smug superiority.
Yep. This site has taken an admirable stand over the years against the use of IP to law as a tool for silencing speech because it's unpopular or disliked, yet on this one issue, suddenly it becomes perfectly fine to use IP law to silence speech that at least one of the main authors here doesn't like.
> It would simply allow everyone who wanted > to use an openly racist term on merchandise > to do so
I don't think it would really hit them very hard at all. They'd only lose their trademark on the word 'Redskins'. They'd still have all their marks on the team's logo and colors, and they could still prevent anyone else from selling those. And since they, too, could also continue to sell 'Redskin' merchandise, the impact would really be minimal.
> it was and is my opinion that the United > States government should not be in the business > of sanctifying rich, white men making gobs of > money off of a reference to the skin color of > a group of people that same government had > nearly obliterated.
And I pointed out at the time (and will do so here again) that the government's grant of a trademark to a business is not even an endorsement (let alone a 'sanctification'-- seriously?) of that business.
> If I discovered an exploit, I sure as hell > would not report it to the police or to > the businesses who are affected by these > exploits because I've seen how they treat > those people who are reporting these exploits.
At this point, at a minimum, someone wanting to do this should probably get an attorney and report it anonymously through the lawyer.
> Consider committing a crime, be punished > as if you'd actually done the crime. Just > when you didn't think America could get any > more dystopian, the Senate is now voting > on whether to start having people arrested > for thoughtcrime.
So many people in this thread are acting like this is something new. The conspiracy offense has been a part of federal law for a century or more. Just because it's now being applied to computer/tech offenses doesn't make it some novel attempt to create a dystopian nightmare.