USPTO: Again, Redskin Can't Be Trademarked Because It's A Racist Term

from the no-kidding dept

In the ongoing maelstrom known as the controversy surrounding the Washington Redskins NFL team name, we've covered before how the trademark they've obtained may soon be under siege. Trademark law has a provision that prohibits marks on disparaging and/or racist terminology, of which the term "redskin" is most assuredly included. This provision is a huge pain in the ass of Daniel Snyder, owner of the Redskins, who, on one hand, insists the team retain their racist name while on the other hand throws around accusations of antisemetism willy-nilly. Building on that worry is the recent case of the USPTO coming out and rejecting another trademark attempt on the word "Redskin" for those very reasons.

Well, unfortunately for Snyder, that case isn't a lone example. The USPTO has rejected another such trademark, this for "Washington Redskins Potatoes", in part of the same reason.

"Registration is refused because the applied-for mark includes matter which may disparage or bring into contempt or disrepute persons, institutions, beliefs, or national symbols," the decision, handed down on March 17, says. It concludes: "Given that "REDSKIN" in the mark is a derogatory slang term that refers to, and is considered offensive by, American Indians, registration of the applied-for mark must be refused" under the Trademark Act, a 1946 law that prohibits the trademarking of offensive or derogatory terms. The examining attorney's decision cites dictionary definitions of the word "Redskins" that say it is "usually offensive" or "offensive slang," and it also notes that groups like the National Congress of American Indians and the Oneida Indian Nation regard the word as a disparaging slur.
Now, I know all you staunch libertarians out there are going to get your boxers in a twist over this, issuing all the same proclamations about how it isn't your responsibility to not offend people, how this is an infringement of speech, or how this is a sign of our increasingly politically correct society. Look, I get you. A large portion of the time on this type of question, I agree with you. But in this case, the law is pretty clear, as is the accepted definition of the term "redskin." And if the NFL team's mark was removed, it wouldn't mean Snyder had to change the name of the team, it would just mean that anyone else, were they so inclined, would be able to use the term in football commerce at that point (although, not the logo, or other trademarked identifiers for the team). The point, as it has been since day one, is that the United States government should not be in the business of sanctifying racist language via grants of trademarks.

It should be noted that the offensiveness of the term was only partly to blame for the denial of the mark. The USPTO also thought there might be some confusion between the team's existing mark and the potatoes (which might not be entirely crazy given the combination of both "washington" and "redskin" for the potato).

Meanwhile, the appeal on the NFL Redskins mark has been heard, and we're all just awaiting their ruling. If the USPTO is anything to go by, Snyder may want to look for a new name -- or at least recognize that the name won't be trademarked any more.


Reader Comments (rss)

(Flattened / Threaded)

  •  
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    PRMan, Mar 27th, 2014 @ 4:06pm

    But...

    Do the potatoes ACTUALLY have red skins? How can it be offensive to label potatoes as they are? Should they become Washington Red-Skinned Potatoes?

     

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      John Fenderson (profile), Mar 27th, 2014 @ 4:12pm

      Re: But...

      Red-skinned potatoes are indeed grown in Washington. I would think the USPTO wouldn't have a leg to stand on in rejecting that one.

       

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        Dark Helmet (profile), Mar 27th, 2014 @ 4:21pm

        Re: Re: But...

        Oh, yes they would. In that case, the mark would be purely descriptive, which is something that was never raised in the USPTO's decision, so the the mark only applying to red-skinned potatoes is highly unlikely....

         

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          btr1701 (profile), Mar 29th, 2014 @ 9:19pm

          Re: Re: Re: But...

          > But in this case, the law is pretty clear

          Yes, and in the case of the DMCA, for example, the law is also pretty clear: that anti-circumvention is prohibited, even to exercise otherwise legal rights. You guys here at TechDirt never just throw up your hands and accept stuff like that because "it's the law is the law is the law". You argue vociferously in favor *changing* the law when it allows for the abuse of intellectual property to stifle or chill otherwise protected rights. That you fail to do so when it comes to this aspect of trademark law is disingenuous.

          The fact is, you guys *constantly* argue against exactly this kind of abuse of intellectual property to censor unpopular speech, but in this one instance, when you apparently approve of the idea of censoring this particular bit of unpopular speech, you just throw up your hands and say, "Well, the law is the law. What can you do?"

          It's just a little bit chicken-shit of you, not to put too fine a point on it.

           

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        identicon
        Anonymous Anonymous Coward, Mar 27th, 2014 @ 4:23pm

        Re: Re: But...

        Wouldn't that depend upon who filed the trademark request? That 's' at the end of Redskins smells like someone tap dancing.

         

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      FauxReal (profile), Mar 27th, 2014 @ 4:26pm

      Re: But...

      In that case the trademark gets rejected due to bad grammar.

       

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      McCrea (profile), Mar 27th, 2014 @ 4:40pm

      Re: But...

      So, all we have to prove is that a native American actually has red skin? Can't be offensive if it's true.

       

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      Applesauce, Mar 27th, 2014 @ 4:44pm

      Re: But...

      Forced to agree with this. The potatoes ACTUALLY DO have red skins. I doubt the dictionary definition of redskin potatoes refers to the nomenclature as offensive or derisive. Potatoes don't generally have feelings anyway. Peelings, sure - but not feelings that can be offended.

       

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        Mason Wheeler (profile), Mar 27th, 2014 @ 5:29pm

        Re: Re: But...

        Exactly. You guys know I'm anything but a "staunch libertarian," but saying that it's offensive to call actual potatoes with red peels (which are known as skins) redskin potatoes is just plain silly.

        What's next? Is it now an offensive racist slur to talk about someone having "a chink in their armor"?

         

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          G Thompson (profile), Mar 27th, 2014 @ 7:58pm

          Re: Re: Re: But...

          >>> Is it now an offensive racist slur to talk about someone having "a chink in their armor"?

          Well each to their own.. though I prefer mine in their own armour that way it's not such a tight fit

          :)

           

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          ethorad (profile), Mar 28th, 2014 @ 2:19am

          Re: Re: Re: But...

          You may be calling a spade a spade, but lets just nip that in the bud. I dink you're as high as a kike or your morality is on the fritz if you think using dis-paki-ble language like that is OK. To avoid being fuzzy-wuzzy about it, lets be clear - yank terms like that from your speech. Don't ape racists and keep your language spic and span. I'm not jock-ing.

          Ocker?

           

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            Anonymous Coward, Mar 28th, 2014 @ 8:47am

            Re: Re: Re: Re: But...

            This just in... Apparently some garden tools now are also offended by the term "spade" and say that they prefer to be called "shovels."

             

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        allengarvin (profile), Mar 27th, 2014 @ 8:54pm

        Re: Re: But...

        Except the application was for gift wrap and some clothing. There were no actual potatoes being branded. It was potato-related items.

         

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      Anonymous Coward, Mar 27th, 2014 @ 6:14pm

      Re: But...

      They probably could resubmit with "red skin" but redskin is clearly a racial slur

       

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        Jeremy Lyman (profile), Mar 28th, 2014 @ 5:02am

        Re: Re: But...

        As is "cracker" I believe... are we going to see a deluge of other trademarks rescinded? Maybe we should start banning books again too.

         

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          Anonymous Coward, Mar 28th, 2014 @ 5:36am

          Re: Re: Re: But...

          Please explain how a trademark application denial is the same as banning a book. Extra points for specific examples.

           

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        Anonymous Coward, Mar 28th, 2014 @ 8:51am

        Re: Re: But...

        Clearly? Really? If that is so "clear" then why is there so much public debate over it?

         

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      Anonymous Coward, Mar 28th, 2014 @ 8:41am

      Re: But...

      Potatoes have feelings too you know and a few of them appear to be offended by the term.

       

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    Jake, Mar 27th, 2014 @ 4:11pm

    Before someone starts talking about a boycott or anything, I'd just like to point out that some types of potato do actually have red skins so any discriminatory overtones were probably unintentional.

     

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      art guerrilla (profile), Mar 27th, 2014 @ 9:31pm

      Re:

      here's the thing, they have been called 'redskin' potatoes for for-fucking-ever; not wasting google-fu on it, but i imagine they may have even originated in a place that had no amer-indians to use the term as a slur...
      not to mention 'white' potatoes...
      (hell, you can get exotic 'black', 'purple', etc potatoes in gardening catalogs)
      *HOWEVER*, i have no doubt *some* food/veggie/fruit popular names have some racist overtones *EVERYWHERE*...
      this ain't one of'em...

       

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    Who Me?, Mar 27th, 2014 @ 4:39pm

    Vandals

    Where are the modern descendents of the Vandals? They should sue everyone in sight for disparaging their name.

    I don't know anyone of norse ancestry who gets upset at the Vikings football team. I certainly don't. Teams get named for tough guys. Bears, lions, giants, vikings, patriots... While the word redskin may also be used as a racist slur its use as a football team name evokes formidability. People don't name themselves something they look down on.

    Some get upset too easily.

     

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      OldGeezer (profile), Mar 27th, 2014 @ 5:08pm

      Re: Vandals

      Vikings is a legitimate historical term and no one with Norse ancestry would find it offensive.

       

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      Anonymous Coward, Mar 27th, 2014 @ 5:33pm

      Re: Vandals

      "Vandalism" is a reference to the sacking of Rome by the Vandals, a huge moment in their history. It's comparing the destruction of Rome to the destruction of other property, not a word based purely on racial differences.

      Also, "Vandal" isn't a race, so it's not a great comparison.

       

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    Nina Paley (profile), Mar 27th, 2014 @ 4:45pm

    I'll even design it

    Obviously the solution is to allow the Washington Redskins to keep their name, as long as their mascot is a potato.

     

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    OldGeezer (profile), Mar 27th, 2014 @ 5:02pm

    Since sports are dominated by black players maybe Washington could name their team the Washington niggers. Not meant to be racist, just to make a point that native Americans find Redskins just as offensive as blacks find that term.

     

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      Anonymous Coward, Mar 28th, 2014 @ 8:55am

      Re:

      "...that SOME native Americans find Redskins just as offensive..."

      FTFY

      There are many who don't and don't seem to care about this. Those that do appear to be a relatively small but very vocal few.

       

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        Anonymous Coward, Mar 28th, 2014 @ 9:29am

        Re: Re:

        I know 9 Indians who find it offensive, none of whom have ever been particularly vocal about it, outside of Facebook.

        Most of these are folks whose grandmother used to annually show them the scars from when she was horsewhipped for "talking Indian" too frequently at the Dawes Act school (forced reeducation camp), so it might not be a fair sample.

         

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          Anonymous Coward, Mar 28th, 2014 @ 9:35am

          Re: Re: Re:

          The point is that the group pushing this appear to be rather small. I remember seeing surveys done that indicated that the vast majority of Native Americans didn't find it offensive and didn't seem to care one way or another about this.

           

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            John Fenderson (profile), Mar 28th, 2014 @ 10:14am

            Re: Re: Re: Re:

            The thing that I've never understood is... why does the team and its fans care so much about this? Seriously, what's the big deal?

            First, the team and mascot aren't being declared illegal or anything, and neither has to change in the first place. They can simply accept that they don't have a trademark on the term "Redskins" and continue on exactly like they have up until now. So to fans who care about tradition -- that tradition is not being threatened even a tiny bit.

            If getting the trademark is really such an existential issue, then just change the damned name. It's not sacred or anything. It's just marketing. Changing the name or the mascot doesn't change the team or the school.

            I really don't understand where the team and fans are coming from on this at all.

             

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              identicon
              Anonymous Coward, Mar 28th, 2014 @ 10:32am

              Re: Re: Re: Re: Re:

              Why should the government grant a license for special privileges to some but not others based on a metric that the first amendment strictly forbids? "Offensive" is not illegal. The problem here is with the government making a decision about what is and is not offensive and then denying some a privilege based on that metric. It is not the government's place to make determinations based on whether someone is offended or not. Regardless of what decision is made, there almost always will be someone who will be offended.

               

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                John Fenderson (profile), Mar 28th, 2014 @ 10:50am

                Re: Re: Re: Re: Re: Re:

                None of which answers my question.

                When it comes to government-granted privileges (which are not rights), the government has always made determinations based on offensiveness.

                Try getting a vanity license plate that includes the word "fuck".

                Try swearing or showing porn on broadcast TV.

                Try naming your kid "shithead".

                And so forth.

                I find it curious that after a couple of centuries of offensiveness being part of the determination in granting many government privileges, there is only outrage about it now, over this specific issue.

                 

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                  Anonymous Coward, Mar 28th, 2014 @ 11:13am

                  Re: Re: Re: Re: Re: Re: Re:

                  I never said they were rights. I said privilege which is what they are. It is the privilege to exclude.

                  So you are ok with them excluding the privilege of marriage between certain people based on the fact that other people are offended by it?

                  I see no problem with "Fuck" vanity plates.

                  I already said get rid of that part of the FCC.

                  The naming your kid thing I found kind of funny. When my daughter was born, we filled out paperwork to tell them what name to put on her birth certificate. I don't remember it ever having to be approved by anyone.

                   

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                    John Fenderson (profile), Mar 28th, 2014 @ 11:31am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    "So you are ok with them excluding the privilege of marriage between certain people based on the fact that other people are offended by it?"

                    Nope. But your question implies that you think I agree with the USPTO about all this, so let me address that up front: I have no opinion on the fundamentals of this case at all. It strikes me as incredibly complex when you start unwrapping it, and I haven't put in anywhere near enough research or thought to be able to have a reasonable opinion.

                    "When my daughter was born, we filled out paperwork to tell them what name to put on her birth certificate. I don't remember it ever having to be approved by anyone."

                    You weren't aware of it because it happens automatically as part of the process, but it was. You can even look up what the specific naming rules are for your state. The states don't vary that much, really, and the rules pretty much boil down to "the name can't be offensive or obscene".

                    There have been numerous cases of people choosing names that weren't allowed, suing over it, and losing.

                     

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                      Anonymous Coward, Mar 28th, 2014 @ 11:43am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      I too don't really care about the specifics of this case. I have no interest in the team and I'm not a fan. I do care however about my government using a loose metric to justify at it's whim treating people unequally.

                       

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                        John Fenderson (profile), Mar 28th, 2014 @ 11:49am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        "I do care however about my government using a loose metric to justify at it's whim treating people unequally."

                        Well, wait a minute. Without knowing the specifics of the case, you can't know that's what's happening.

                         

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                          Anonymous Coward, Mar 28th, 2014 @ 12:24pm

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          We know this. A registered trademark is a government granted license to exclude others from using the mark in commerce. The USPTO, a government entity, denied the mark to the person requesting it based on a claim that it was offensive. As I have explained, "offensiveness" is a very loose metric for the government to use to make decisions on that allows them to suddenly decide something is offensive whenever they want to deny someone access to something.

                           

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                  Anonymous Coward, Mar 28th, 2014 @ 11:37am

                  Re: Re: Re: Re: Re: Re: Re:

                  And I never said that the government didn't make determinations based on offensiveness. I said the government SHOULDN'T make determinations based on offensiveness because it is a dangerous precedent to follow. Simply, who gets to decide and base on what criteria what is and is not offensive. If the first amendment is an indicator, offensiveness should not be a legal metric on which to base any decision made by the government. If privileges afforded to people are somehow different, how come SCOTUS determined that separate could not be equal and that was unfair because some were afforded more privileges than others? Were some people not offended by integration? If the fact that some people are offended, can be used to deny people privileges granted by the government, hell then let's just flush that decision down the toilet and allow states to use offensiveness to justify denying all kinds of privileges to whoever they want to including the privilege of school funding along with the privilege of attending specific schools. Right?

                   

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                    John Fenderson (profile), Mar 28th, 2014 @ 12:30pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    "I said the government SHOULDN'T make determinations based on offensiveness because it is a dangerous precedent to follow."

                    Yes, I understand. But it's a precedent that was set nearly 200 years ago, so that horse has been out of the barn for a long time now. I'm simply saying that I find it interesting that people are complaining about it with this Redskins thing, but they weren't all up in arms about it for any of the myriad other things. It smells like people aren't actually upset about the underlying principles involved at all, but are upset because they like the Redskins or something.

                    "If privileges afforded to people are somehow different, how come SCOTUS determined that separate could not be equal and that was unfair because some were afforded more privileges than others? "

                    You're mixing your fruits. "separate but equal" was not about privileges, but about rights.

                     

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                      Anonymous Coward, Mar 28th, 2014 @ 12:44pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      Slavery existed for hundreds of years before it was decided to overturn the precedent that was set that it was ok too. Just because it has been that way a long time doesn't mean it shouldn't be changed if it's a bad idea.

                      I'm not really mixing fruits. "Right" or "privilege" is all about how you frame it. Sure you have the right to an education but you may be granted the privilege of attending a particular school or not. And certain schools may have the privilege of more funding than others. The basis that SCOTUS used to declare that separate was not equal was exactly that - privilege. What some had access to had more privilege than what others had. Therefore they could not be equal. It was all based on privilege that affected the rights (like the right to an education) that people had.

                       

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                        John Fenderson (profile), Mar 29th, 2014 @ 12:14pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        "Sure you have the right to an education"

                        If you mean a right to be provided schooling by the state, then you have no such right. We provide education because it's a huge benefit to society to do so, not because it's a right, nor because we're just being nice.

                         

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                      Anonymous Coward, Mar 28th, 2014 @ 1:04pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      Too illustrate my point about rights and privileges from the government further.

                      You have a right to use publicly funded roads and highways to travel about the country, yet they restrict that right with requiring the privilege of a driver's license. Now suppose someone should argue that you should be denied the privilege of obtaining a drivers license based on the fact that a small group of people were offended by the fact that the government granted you one and the government decided that that was a valid metric with which to justify denying people the ability to drive. Would that make any sense whatsoever?

                      I use the example of gay marriage for a reason. From a practical legal perspective, what exactly is marriage? It's a government granted license that affords you certain privileges when it comes to taxes, how property ownership is handled, legal exceptions when someone is charged with a crime, insurance, etc. It's not a right. It's a privilege granted by the government. So my question still stands, if it is ok for the government to use offensiveness as a metric to deny access to government granted privileges, why should it be any different with gay marriage? It's pretty obvious that there are plenty of people out there offended by it. There are also plenty of people out there offended by the fact that some people aren't afforded access to those privileges. Many people talk about promoting tolerance without understanding what tolerance is actually about. It's about accepting that which offends you. That is what it is. Passing laws where the government uses offensiveness as a metric like this is the exact opposite of tolerance.

                       

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                        John Fenderson (profile), Mar 29th, 2014 @ 12:21pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        "You have a right to use publicly funded roads and highways to travel about the country"

                        Again, you have no such right. It's 100% privilege. You do have a right to free travel, but not the right to use the highways to accomplish it.

                        You are correct about marriage, and it's one of the reasons that I think the government should get out of the marriage business entirely. The legal benefits of marriage can be done contractually, and should be done that way. No government privilege is required.

                        Nonetheless, we've completely sidetracked. None of this addresses my actual question at all.

                         

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                          Anonymous Coward, Mar 30th, 2014 @ 9:50am

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          I already addressed your question. The team doesn't want to endure the cost and effort of rebranding the franchise which would be significant. The fans don't want the merchandise they have previously purchased to signify their devotion to the team to no longer serve that purpose.

                          And although most of the cases I have seen have been state decisions, (such as Thompson v. Smith) there have been several decisions where the courts have decided that the use of roads are a public right.

                           

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              Anonymous Coward, Mar 28th, 2014 @ 12:32pm

              Re: Re: Re: Re: Re:

              And changing the name of the team would be expensive. It's expensive to rebrand the team and remarket it when everyone is already familiar with the previous mark. Also there is already a ton of merchandise that would now be next to worthless with the previous mark. Furthermore fans who own existing merchandise will likely not be happy that what they bought to demonstrate their devotion to the team no longer serves it's purpose.

               

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    Anonymous Coward, Mar 27th, 2014 @ 5:03pm

    Redskin"s" potatoes?

    That extra 's' at the end just reeks of someone trying to be slick, despite the fact that there are in fact redskin potatoes grown in Washington

     

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      John Fenderson (profile), Mar 27th, 2014 @ 5:06pm

      Re: Redskin"s" potatoes?

      He's not being slick so much as being a dick. I don't think he seriously expected it to be accepted.

       

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        That One Guy (profile), Mar 27th, 2014 @ 6:23pm

        Re: Re: Redskin"s" potatoes?

        As an alternative idea, I almost have to wonder if a certain someone 'suggested' the name, in the hopes of setting precedent.

         

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    Anonymous Coward, Mar 27th, 2014 @ 5:42pm

    The USDA is apparently at partial fault for the shameful name of this tasty tuber: http://www.cooksinfo.com/redskin-potatoes

     

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    Anonymous Coward, Mar 27th, 2014 @ 6:05pm

    Oh dear. What about this:

    http://en.wikipedia.org/wiki/Red_Pontiac_potato

    Unknown if these are/were trademarked terms. I'll take Tim's point on the team name mainly because comparing *people* across ethnic lines is certain to piss somebody off.

    But this a tuber. A part of a plant. Bounty of Mother Gaia, etc. etc. Not Au Gratin -- it's Au Natural. The word redskin here is descriptive.

    I'm pushin' 60 and have heard the term since boyhood in reference to potatoes. It's the label on the bin at the local Kroger's.

    Somebody at the USPTO just wants to be pissed off ;)

     

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      Anonymous Anonymous Coward, Mar 27th, 2014 @ 6:14pm

      Re: Oh dear. What about this:

      I'm thinkin' that the application had nothing to do with potatoes, in the end, and was a side step in getting a team name past a bureaucratic body.

       

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    Anonymous Coward, Mar 27th, 2014 @ 6:18pm

    Everyone!

    1) red skin> descriptive, adjective modifying a noun

    2) redskin> Noun, racial slur for native Americans

    The potatoes would be ok if they used 1, but not 2.

     

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    identicon
    Anonymous Coward, Mar 27th, 2014 @ 6:52pm

    Red Skin?

    All the Indians I have met had brown skin, even the ones from India.

     

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    identicon
    JustSomeGuy, Mar 27th, 2014 @ 6:59pm

    "it isn't your responsibility to not offend people" - actually, unless you're a clueless dick, it IS your responsibility to try not to offend people.

    That's called civilisation :-)

     

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      identicon
      Techanon, Mar 27th, 2014 @ 9:03pm

      Re:

      I call it "being politically correct".

      For people who think words are offensive, I would recommend them to make a list of these words, stand in front of a mirror and recite that list over and over until these words lose their meaning.

       

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        identicon
        Anonymous Coward, Mar 28th, 2014 @ 3:56am

        Re: Re:

        I think you missed the point.

        The only ones being political are those who blame "Political Correctness" and being a dick is not necessarily political.

        For example, when society shuns an individual due to their bad behavior, it is rather childish of that individual to blame it on society rather than thenselves.

         

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    identicon
    Digger, Mar 27th, 2014 @ 7:32pm

    You do not have the right not to be offended..

    That's right folks, that pesky bill of rights, the one that Obama, the NSA, the FBI and the CIA have been trampling over left and right, doesn't include anywhere a right not to be offended.

    Get over yourselves.

    Faggot = measure of cut wood.
    Redskins = Football team for many many years
    Redskin potatos - GARSH! Potatos with *gasp* red skins.

    Fuck the USPTO for being ignorant and moronic.

    Fuck Congress for passing laws to protect people from being butt-hurt.

    You know what? Fuck you, you don't have the right not to be offended.

    It's a Christmas party.

    It's Merry Christmas - not Happy Holidays.

    It's Daddy Daughter Dance.

    Just because a term can be used with derision doesn't mean it cannot be trademarked.

    If that were the case, then I'm going to classify white trash as "Windows" - oh man, look at those poor windows slobs!!

    Then let's watch as Microsoft loses their trademark protected OS name!! YAY!

     

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    toyotabedzrock (profile), Mar 27th, 2014 @ 7:59pm

    I think the potato is more deserving of the trademark. If in fact the potato has a red outer layer.

     

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    G Thompson (profile), Mar 27th, 2014 @ 8:13pm

    Redskins are Yummy sugary goodness downunder

    In Australia we have had Redskin's for ages... I remember many a day as a young grommet when I would head up to the corner store my hand tightly clutching a 20cent piece and buy at least 5 of the things so I could enjoy the rasberry goodness of pure sugar and gooeyness when they become long stringy things. Then trying to wash off all the evidence of my indulgence since my whole mouth (skin on my face) was a bright red.


    We have had Nestle REDSKINS in Australia for at least the last 5 decades though admittedly due to sensitive Americans (we call them pussies) Nestle changed the wrapper in the 1990's to remove the American Indian on them and replaced it with just the word, oh and it's trademarked Worldwide.

    Before the change.. [image]

    After the 'sensitivity' change [image]

     

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    Blaine (profile), Mar 27th, 2014 @ 8:26pm

    Disappointed

    I'm not a writer so I'm probably not going to express myself as good as I'd like to, but I'll give it a try.

    To me censorship is the use of force, large or small, to restrict the message of someone else.

    I not very interested in this particular topic, but what bothers me is that there have been a couple articles on Techdirt, celebrating the use of trademark law to force someone to change their speech... because reasons....

    The mantra here on Techdirt has always seemed to me to be, counter 'bad speech' with 'good speech.' Of course, good and bad is based on personal perspective.

    I realize it's not possible to reason with some people. They may honestly believe their words shouldn't offend other people, or they may secretly hope that they do. We may not be able to use 'our good speech' to counter 'their bad speech.' But laws that can be used to censor the 'horrible people' we disagree with, can be turned around and used on the 'good people' we like.

    Pointing out that they aren't being forced to change their name, they just cant have the trademark is just a dodge. The people pushing to remove the trademark aren't doing so because they want to use the mark, they are doing it to try and get the team to change the name. Clear law or not, these articles read like "yeaaa, they are going to have to change because the law says so." If it were something like the Red Cross being targeted for Christian vs. Muslim wars, would the tone of the article be different?

    Like I said, I have no interest in debating the topic of the article. I just feel a bit disappointed in what I see as happiness over the use of trademark law (right or wrong) to force someone to change their speech.

     

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      art guerrilla (profile), Mar 27th, 2014 @ 9:40pm

      Re: Disappointed

      as an absolutist on free speech, i am with you on this one...
      are we 'free' or not ?
      IF we *ARE* free, then we are free to be disagreeable or offensive...
      IF snyder/whoever owns their own team, product, service, whatever, and they want to name it something that offends a bunch of people, then they should be free to do so...
      PRESUMABLY, the people who would be customers of said sports team, products, or services would decide NOT to patronize them because they were too offensive to stomach...
      IF other people want to express their disagreement by boycotts, etc, that's fine; but using various legal dodges and pretexts to 'legally' 'shut someone up' is EXACTLY what free speech rights were intended to protect...
      non-controversial speech needs NO PROTECTION, because -by definition- no one wants to squelch it, or cares to...

       

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        JMT (profile), Mar 27th, 2014 @ 10:58pm

        Re: Re: Disappointed

        ""IF snyder/whoever owns their own team, product, service, whatever, and they want to name it something that offends a bunch of people, then they should be free to do so...

        THEY ARE, they're just not being allowed to have a government-sactioned right to prevent anyone else from using it too. This is actually the opposite of a restriction on free speech, it's preventing a restriction on free speech.

         

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      Mike Masnick (profile), Mar 27th, 2014 @ 11:52pm

      Re: Disappointed

      I not very interested in this particular topic, but what bothers me is that there have been a couple articles on Techdirt, celebrating the use of trademark law to force someone to change their speech... because reasons....

      You're wrong. Nothing in any of this involves using trademark law to force anyone to do anything. Without the trademark, anyone is free to continue to use the term "redskin" whether they believe it is offensive or not. What they're NOT getting is a government-granted monopoly on the term.

      The mantra here on Techdirt has always seemed to me to be, counter 'bad speech' with 'good speech.' Of course, good and bad is based on personal perspective.

      And nothing in this discussion differs from that position. Tim is just saying there's no need to grant a trademark on terms like this.

      But laws that can be used to censor the 'horrible people' we disagree with, can be turned around and used on the 'good people' we like.

      Again, read carefully: nothing in this is about stopping anyone from using the terms. It is not about censorship. It's the opposite of that, actually. It's about not granting a single party a government granted monopoly on a term many people find racist.

       

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        ethorad (profile), Mar 28th, 2014 @ 2:35am

        Re: Re: Disappointed

        The thing I don't understand, is why the government denies trademarks based on racist terms. I know the short answer is "because it's in the law", but why is it in the law?

        Recognising that a certain word is used by a given company for a particular product doesn't mean that the government is agreeing with the word, company or product. If the name was subsequently used in a racist manner, then the company would be in trouble regardless of whether a trademark existed.

        I guess if trademark is a criminal issue, then the goverment doesn't want to get into the business of fighting for someone who has registered a racist mark?

         

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          identicon
          Anonymous Coward, Mar 28th, 2014 @ 4:08am

          Re: Re: Re: Disappointed

          "why the government denies trademarks based on racist terms"

          As pointed out by others previously, trademark is a government granted "monopoly" on the use of a mark in a field of commerce. This was originally intended to protect the consumer from knockoff copycats but has been bastardized into a weapon of mass distortion. You can call your company, product, method, etc whatever you want but the government does not have to endorse your choices.

           

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            btrussell (profile), Mar 28th, 2014 @ 8:24am

            Re: Re: Re: Re: Disappointed

            A trademark is a government endorsement?

            Why are they endorsing cigarettes?

             

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              identicon
              Anonymous Coward, Mar 28th, 2014 @ 5:15pm

              Re: Re: Re: Re: Re: Disappointed

              Poor choice of word, oh well.

              Although not an endorsement, I have no idea why the tobacco companies receive subsidies.

               

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          identicon
          Anonymous Coward, Mar 28th, 2014 @ 10:18am

          Re: Re: Re: Disappointed

          The government deeming something "offensive" or not and using that to base decisions is a dangerous precedent to follow. Obscenity laws are basically a semantically end around of the 1st amendment. Because they can't deem something illegal they call it something else like "obscene" and then pretend that passing a law against obscenity isn't the same thing. Now for the sake of argument, I'm going to play devils advocate with a different hot button issue here. Some people find gay marriage offensive. Should the government then not recognize gay couples that want to be married simply because another group finds that action offensive? After all marriage from a legal perspective is nothing more than a government granted license, just like trademarks, copyrights, and patents. The answer is that the government should not be making any decisions one way or another based on whether something is "offensive" or not. Period. And yes that also means getting rid of the part of the FCC which tells people what they can and can not see or hear over public airwaves. Tolerance is about accepting those things that others say and do even if you don't agree with it or are offended by it. Tolerance is not about labeling the actions and speech of others intolerant that you don't agree with by defining what is and is not offensive which is what this is.

           

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        identicon
        Anonymous Coward, Mar 28th, 2014 @ 9:17am

        Re: Re: Disappointed

        Again, read carefully: nothing in this is about stopping anyone from using the terms. It is not about censorship.

        BULL. That IS what it's about.

        The people who protested the trademark to the patent office didn't do so because they worried that letting them keep the trademark would have the appearance of government approval of the term. They certainly didn't do so because they objected to the monopoly and genuinely wanted more people to be able to use the term in commerce. They did so because they wanted to use any means necessary to get the name changed. This is about using the power of the government to "force" the team to stop using the name.

        Nothing in any of this involves using trademark law to force anyone to do anything.

        Again, that IS what it's about. The entire POINT of the mark being challenged is to "force" the name to change. Tim even said as much in a previous article on this:

        So how do we finally get the name changed? As it turns out, the answer just might be trademark law.
        Now, while the cancellation of the mark wouldn't require the team to change its name, or even stop using the epithet in commerce, it might as well.


        When the question is "So how do we finally get the name changed?" and the answer is "trademark law", then trademark law is being used for censorship. I'm not even sure how you can deny that. True, they are technically not banned from using the term if the trademark is revoked. But, as Tim noted, they "might as well" be. Economic coercion by the government is a softer form of censorship, but it's still censorship.

        You claim this is not about making the Redskins change their name? Assuming the Redskins don't change their name, the primary effect of revoking the trademark would be to make things easier for counterfeiters of Redskins merchandise, at the expense of the Redskins. Yeah. I'm not seeing the compelling interest in that.

         

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          John Fenderson (profile), Mar 28th, 2014 @ 10:20am

          Re: Re: Re: Disappointed

          "Assuming the Redskins don't change their name, the primary effect of revoking the trademark would be to make things easier for counterfeiters of Redskins merchandise, at the expense of the Redskins."

          Not true. Trademark law can still be used for this purpose even if "Redskins" isn't trademarked. It's been done many times over the years. What you do is simple -- you develop a new design, logo, or phrase and trademark that. All of your official merch includes that along with the traditional Redskins stuff.

          Mission accomplished. People can no longer legally "counterfeit" official merch because they'd have to use the new trademark to do it.

           

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        Blaine (profile), Mar 28th, 2014 @ 11:38am

        Re: Re: Disappointed

        "...terms like this"
        What's the cutoff line for 'terms like this?' Who gets to decide? Can I get a copy of this list?

        "You're wrong. Nothing in any of this involves using trademark law to force anyone to do anything."

        I suggest a test.
        If the Government preforms the action: Denies or removes a trademark.
        Will the affected party be more likely to change their speech?

        Of course we'll need to examine the reason for the government action: Based on speech the government has declared bad.

        If we try to look at the root of the discussion and remove the emotion, we come back to.

        Someone's speech is more likely to change because of government action. The reason for the action is, use of a word the government has declared to be bad.

        Force doesn't have to be overt and final. The smallest pressure is still force. After all, nothing the government did forced the ISPs to enact 6 strikes.... right?

         

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    identicon
    Digger, Mar 27th, 2014 @ 8:38pm

    There's an idea

    Just apply for an international trademark on the Redskins (football team) and Potato product.

    Then it's there, and can be enforced - fuck the USPTO

     

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    identicon
    Anonymous Coward, Mar 27th, 2014 @ 8:59pm

    The point, as it has been since day one, is that the United States government should not be in the business of sanctifying racist language via grants of trademarks.


    And granting a trademark does not "sanctify" anything, any more than granting a copyright on the KKK handbook means the government approves of its actions.

    It's this sort of thinking that leads to cities declaring that they won't give any permits to Chik-Fil-A because they don't like the speech of the owner. The government is not supposed to be in the business of approving which speech is appropriate and which is not.

     

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      That One Guy (profile), Mar 28th, 2014 @ 1:28am

      Re:

      Copyright's automatic, trademark isn't.

      Also, and I can't believe this just keeps coming up, losing a trademark stops them from doing nothing other than stopping other people from using the trademarked image/name in question. That's it. It is, in no way, shape, or form preventing speech, and is if anything the exact opposite.

       

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        identicon
        Anonymous Coward, Mar 28th, 2014 @ 9:04am

        Re: Re:

        He still makes a valid point. Whether it is automatic or not, copyright is still a government granted monopoly just like trademark. I think the point really should be the government should not be in the business of deciding what is and is not considered offensive. Period.

         

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        identicon
        Anonymous Coward, Mar 28th, 2014 @ 9:38am

        Re: Re:

        Copyright's automatic, trademark isn't.


        Actually, you can have an unregistered trademark, just like you can have an unregistered copyright. That's why some marks are (R) and some are (TM), right?

        Also, and I can't believe this just keeps coming up, losing a trademark stops them from doing nothing other than stopping other people from using the trademarked image/name in question. That's it. It is, in no way, shape, or form preventing speech, and is if anything the exact opposite.


        Which is identical to copyright. Sure, you're not preventing them from saying it, you're just making sure they don't make any money off of it.

         

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          John Fenderson (profile), Mar 28th, 2014 @ 10:24am

          Re: Re: Re:

          "Actually, you can have an unregistered trademark, just like you can have an unregistered copyright. That's why some marks are (R) and some are (TM), right?"

          That is correct.

          (R) means a registered trademark, (TM) means an unregistered trademark.

          In the US, an unregistered trademark does not have most of the protections that a registered trademark has, but it does provide some protections. Wikipedia has a pretty good explanation of the difference here: http://en.wikipedia.org/wiki/Unregistered_trademark

           

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        Marc John Randazza (profile), Mar 28th, 2014 @ 3:04pm

        Re: Re:

        No, no, no, no...

        Losing the trademark registration does not mean that they lose the trademark. They can still enforce the mark, they simply lose some of the presumptions that come along with a registration.

         

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      identicon
      Anonymous Coward, Mar 28th, 2014 @ 4:12am

      Re:

      "It's this sort of thinking that leads to cities declaring that they won't give any permits to Chik-Fil-A because "

      It's like comparing apples and oranges, they're both spherical so they must be the same thing.

       

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    allengarvin (profile), Mar 27th, 2014 @ 8:59pm

    Go look at the article it links to. The main reason it was denied because they weren't trying to brand any potatoes. There's not a single potato in the application. Note this part: "The application doesn’t appear to have anything to do with actual potatoes. The rejection notes that the applicant applied for the trademark to market “entertainment services” and all sorts of merchandise, from clothing to trading cards."

    It got denied mainly because it could be confusingly similar to the Washington Redskins team trademark.

     

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      identicon
      Anonymous Coward, Mar 27th, 2014 @ 9:12pm

      Re:

      The denial makes more sense if they're trying to trademark entertainment, clothing, and trading cards instead of potatoes. Those would actually compete with the existing Redskins.

       

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      That One Guy (profile), Mar 28th, 2014 @ 1:34am

      Re:

      '...from clothing to trading cards'

      Oh yeah, that had nothing to do with potatoes, whoever filed that was definitely trying to pull a fast one, though given I'm fairly sure trademarks can be transferred, I'm still left wondering if the driving force behind that trademark application was a 'suggestion' from a certain someone.

       

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      John Fenderson (profile), Mar 28th, 2014 @ 12:34pm

      Re:

      "The main reason it was denied because they weren't trying to brand any potatoes. There's not a single potato in the application."

      Which is a highly dubious reason. I was going to say "crazy," but I'm feeling charitable today.

      There is no requirement that a trademark's design or wording have anything to do with the product or service it applies to. If that were the case, then whole ton of trademarks that exist wouldn't be valid.

      The requirement is that the mark has to be actually in use for a product or service (and the potatoes thing certainly fails in that regard).

       

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    identicon
    Anonymous Coward, Mar 27th, 2014 @ 9:59pm

    "Redskin" single word derogatory "Red Skin or Skinned" perfectly legal.

     

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    identicon
    Gregg, Mar 28th, 2014 @ 4:30am

    Staunch libertarians

    I just had a review of the Libertarian Party principles (www.lp.org/platform) and nowhere does it say that the US government should be in the business of granting exclusive trademarks, or spending tax dollars on civil courts to defend trademark claims.

    Free speech advocates may get their boxers in a twist over the USPTO ruling, but staunch libertarians would note the Constitution protects patents, not trademarks, and that Congress just sort of made up trademark law in 1870, which was invalidated by the Supreme Court, and again in 1881, which only regulated commerce with foreign nations.

    The rest of this nonsense only started in 1905, and the US managed to survive for 130 years without national trademark law. I'd be very interested if anyone has empirical evidence that society has improved/become safer/been more productive as a result of this. I won't hold my breath, though.

     

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    383bigblock (profile), Mar 28th, 2014 @ 5:20am

    OFF The Mark - Totally

    I'm a daily reader of Techdirt and for the most part the site is right on point. Here you guys totally missed the mark. Talk about stifling free speech. What the hell does a red skinned (new potato) have to do with a football team. Why don't we just ban red skinned new potatos since they are obviously racist and if we ban them there is not commerce issue and we don't have to worry about USPTO or any LIBERAL getting the feelings hurt or panties all wadded.
    This article is such a disappointment at so many levels.

    You guys missed the mark, the boat, the barn, everything.

    I'm of Irish background and find the term Mick offensive. We should ban all businesses that have a "Mc" in their name. Let's start with McDonalds, I think you guys can carry that torch for me. It's disparaging and hurts my feelings.

     

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      identicon
      Anonymous Coward, Mar 28th, 2014 @ 5:42am

      Re: OFF The Mark - Totally

      Ahhhh, trademark has nothing to do with free speech.

      The function of trademark is to provide the consumer some amount of assurance that the branded product they are considering purchasing is indeed the product they think it is rather than some fly by night product being sold by a scam artist. It is a shame that trademark is being abused for nefarious purpose and that the general public perception of same is one of acceptance.

       

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      John Fenderson (profile), Mar 28th, 2014 @ 10:53am

      Re: OFF The Mark - Totally

      "Talk about stifling free speech"

      Where is that being stifled? Nobody is saying the Redskins can't keep calling the team the Redskins.

       

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    jupiterkansas (profile), Mar 28th, 2014 @ 7:55am

    I don't get it

    Why don't they just admit the name is kind of offensive and then ask the native population of Washington to come up with a new name? Rebrand the team and gain a marketing coup.

     

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    identicon
    White Man, Mar 28th, 2014 @ 8:13am

    Just Asking

    I am a white man, with white skin. Am I politically incorrect?

     

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  •  
    identicon
    White Man, Mar 28th, 2014 @ 8:13am

    Just Asking

    I am a white man, with white skin. Am I politically incorrect?

     

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    identicon
    Anonymous Coward, Mar 28th, 2014 @ 9:24am

    I'm sure this decision will be a peeled anyway,

     

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    John85851 (profile), Mar 28th, 2014 @ 1:36pm

    Semantics?

     

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    John85851 (profile), Mar 28th, 2014 @ 1:39pm

    Semantics?

    Isn't the USPTO's declaration also a little offensive? Do Native people still want to be called "Indians" when that's the term for people from India?

    And should Native people be called "Native Americans" since they were on this land before the Europeans called it "America"?

     

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    Marc Randazza (profile), Mar 28th, 2014 @ 3:00pm

    You receive no points, and may god have mercy upon your soul

    Tim, you wrote:

    And if the NFL team's mark was removed, it wouldn't mean Snyder had to change the name of the team, it would just mean that anyone else, were they so inclined, would be able to use the term in football commerce at that point (although, not the logo, or other trademarked identifiers for the team).

    Incorrect.

    All it would mean is that Snyder would lose his registration, which would cost him some presumptions in litigation, and some international priority rights. But, he would still have a common law trademark.

    HTH

     

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  •  
    identicon
    Anonymous Coward, Mar 29th, 2014 @ 9:24am

    In politically correct manner, we call blacks African Americans, so why not call these folks American American?

     

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