After I questioned whether the U.S. Trademark Trial and Appeal Board had overstepped its bounds when they ruled against the Washington Redskins last week, some readers wrote to say that I just didn’t understand the purpose of the Patent Office.
Preventing companies from copyrighting offensive names such as Redskins under the provisions of the Lanham Act was, some said, exactly what this body was established to do. But writing in the Washington Post, George Washington University’s Jonathan Turley thinks, as I do, that the decision against the Redskins is an indication that government regulatory agencies are out of control. The Patent Office, like the IRS and a host of other government bodies, isn’t content with merely enforcing the law neutrally but now eagerly seizes any opportunity to reward those individuals, groups, or companies that they approve of and to punish those they dislike.
The Redskins case is a good example because the National Football League franchise’s insistence on keeping a brand name that is obviously offensive to Native Americans is difficult to sympathize with unless you are a fan of the team’s traditions. I agree with those who think owner Daniel Snyder is merely being stubborn and ought to drop a slur that can’t be credibly defended as a name that honors rather than insults Indians. But, as Turley notes, the government’s decision to seize on an ambiguously worded phrase in one statute in order to take a stand on the team that actually will change little is dangerous.
But if you think this is the only time this body has made an outrageous decision, you’d be wrong. While I wondered whether the Redskins opinion would set an unenforceable precedent that would call into question uncounted numbers of companies with logos and names that might be offensive to someone somewhere, the fact is the Patent Office actually has a long record of behaving in this fashion.
As the New York Times’s Upshot section noted in a piece published on Friday, there are many other examples of perplexing, even ridiculously arbitrary decisions on company or group names that have been handed down over the years. The office denied the right of Heeb magazine to patent its name for the sale of T-shirts as well as stopping an Armenian-American from marketing an alcoholic beverage it called “Khoran.” It also stopped a group of Asian-Americans from getting a trademark on their name because they called themselves “The Slants.” Yet it prevented an Italian-American group that is offended at the mention of a certain organized crime group from spiking a trademark on the name “Memphis Mafia,” which is an association of Elvis Presley fans. It also halted the effort to challenge the right of a lesbian motorcycle-riding club to call their group “Dykes on Bikes.”
The point here isn’t that one ruling was wise and another foolish. It’s that the government has no business getting involved in any of these decisions, regardless of the dubious merits of any of the names or the groups involved. But like the willingness of the IRS to play favorites on the question of granting nonprofit status, the Patent Office has no business exercising this kind of power.
As Turley writes, virtually every branch of government is vulnerable to the sort of “mission creep” that allows them to stick their noses into issues that they’d be better off staying away from. What Congress needs to do is to pass laws that ensures that government agencies stick to their original purposes. In the case of the Patent Office, that would mean protecting intellectual property rather than, as it did with the Redskins and some of these other cases, actually seeking to deprive individuals or companies of the ability to defend their rights. You don’t have to be a fan of the Redskins or like their justly unpopular name to understand that a government that arrogates such power to itself is one that is capable of imposing itself in sectors where it will be easier to see just how wrongheaded such an intervention would be.