In the United States there is much discussion about the decision (18 June 2014) of The US Patent Office to cancel six trademarks registered between 1967 and 1990 by the famous football team Washington Redskins, all of them containing the name ‘Redskins’.
‘Redskin’ is considered an epithet disparaging and racist from a part of the Native American community . For this reason, in 2006, a group made up of six Native Americans asked the Office to cancel the trademarks appealing to the Lanham Act (Section 2), which prohibits the registration of trademarks that “may disparage” groups or individuals.
The Office ruled (here the decision) the cancellation of the trademarks, arguing that the records established “that, at a minimum, approximately thirty percent of Native Americans found the term REDSKINS used in connection with respondent’s services to be disparaging […] Section 2(a) prohibits registration of matter that disparages a substantial composite, which need not be a majority, of the referenced group. Thirty percent is without doubt a substantial composite“. Furthermore, “The recognition that this racial designation based on skin color is disparaging to Native Americans is also demonstrated by the near complete drop-off in usage of “redskins” as a reference to Native Americans beginning in the 1960’s“.
In Europe, the Community Trade Mark Regulation (Council Regulation no 207/2009 art. 7, paragraph 1, letter f) excludes the registration of trademarks which are contrary to public policy or to accepted principles of morality; in particular blasphemous, racist or discriminatory words or phrases; the standard to be applied is that of the reasonable consumer with average sensitivity and tolerance thresholds (judgment of 09/03/2012, T-417/10, ‘¡Que buenu ye! Hijoputa’). It is not necessary to establish that the applicant wants to shock or insult the public concerned; the objective fact that the CTM applied for might be seen as a shock or insult is sufficient (decision of 23/10/2009, R 1805/2007-1 – ‘Paki’). The perception of the public remains the key factor, although other factors may be taken into account as dictionary definitions, stated the Office in “Fucking Freezing” case (decision of 01/09/2011, R 0168/2011-1).
What is surprising is the opposition of the team owner, Dan Snyder, who firmly opposes the idea of changing the name of the team, although a part of the American public believes that the use of the term Redskins is strongly offensive. On this point, President Obama declared to the Associated Press “If I were the owner of the team and I knew that the name of my team, even if they’ve had a storied history, that was offending a sizable group of people, I’d think about changing it“.
Where the public opinion will fail, maybe the economic interest will win.
If the decision will be upheld on appeal, and the exclusive right be permanently cancelled, this will not prevent the use of the name Redskins as the name of the football team. However, as some commentators have noted, the failure to register the trademark will affect the ability to exploit it economically and thus to profit from the merchandising of products.
But in an ideal world, the accusation of racism should worry Mr. Snyder more.
photo credit: Keith Allison via photopin cc
