There’s no shortage of piling-on when it comes to the controversy over the name of the Washington Redskins football team. But too often overlooked is the government’s response to all the noise. The U.S. Patent and Trademark Office (PTO) created a fatal contradiction for itself when it announced on June 18 that it would cancel the trademarks of the Washington Redskins. In handing down the decision, the PTO claimed the name was disparaging. However, a Freedom of Information Act request showed that nobody complained to the PTO about being disparaged by the name, revealing the decision as entirely subjective.
The pro-Redskins arguments that take on the false hope that the name was meant to honor Native Americans are elementary and almost as offensive as the name itself. The real issue boils down to the one that essentially launched the republic: whether we are a nation of laws or a nation of men. Is the rule of law inviolable or is it elastic depending on who is in charge of government? If the Obama administration or any future administration can direct bureaucrats to unilaterally determine that which is disparaging, there is no end to abuse. It’s a powerful issue, one that is only a few short steps from the novel Fahrenheit 451 and the question of who determines which books are to be burned.
Should Quentin Tarantino lose his property rights associated with the movie D'jango Unchained because it contains offensive racial dialog? Can the trademarks and copyright associated with certain works by Mark Twain (Samuel Clemens for you English Lit majors) be revoked because they contain racial epithets? Are composers and performers of songs that include disparaging references to people of different racial groups or sexual proclivities at risk of losing the protections previously granted through trademarks and copyright? As an African-American man, I’m not crazy about words like ‘negro’ or ‘colored’ so perhaps the PTO needs to take action against the trademarks of the United Negro College Fund and the NAACP.
This is not an issue of who can be the least offensive. For more than 75 years the Redskins name was socially acceptable and enjoyed trademark protections (though a similar PTO decision was overturned on appeal by the team). Via that protection, the name and the Redskin brand grew into valuable property.