Another Abuse of Power In Cancelling Redskins Trademarks

Recently, in a 2-1 decision, the Office of Patents and Trademarks cancelled six of the Washington Redskin trademarks on the basis that they were disparaging to Native Americans, leaving the team to meander through the Federal court system to restore their control of these valuable assets.  And, valuable they are.  Without trademark protection, anyone can produce a product or provide a service using the Redskin's classic "Indian-head" logo or the name Redskin in association with it.  

The problem with this ruling is that it goes well beyond the Office of Patents and Trademarks' authority.  First of all, the cancellation of a trademark can only occur for the following reasons:

"The United States Patent and Trademark Office, on its own or by request, may initiate proceedings to cancel trademarks that are improperly obtained. Trademark rights can be cancelled due to abandonment, improper licensing or assignment, improper use, or if they are too generic."

Now, some might argue "improper use" as the rationale for the cancellation but, what that actually refers to are things like using a trademark as an adjective and not a noun or in the plural. Nowhere is there the legal right to cancel a trademark on the basis of it being "disparaging," demeaning or racist.  If that were true, Aunt Jemima, Uncle Ben, Juan Valdez, Eskimo Pie or even Chiquita Bananas should have been disallowed long ago.

The other problem that this ruling has is that it appears that only 30% of  Native Americans find the Redskins offensive.  So, conversely, 70% -- a clear majority -- have no problem with the name. So, in the minds of Trademarks office, minority rules.

The biggest problem with the decision is that the Office of Patents and Trademarks seems to think they have the authority under 15 U.S. Code § 1052  of the U.S. code covering trademarks.  However, that section of the law only applies to the "application" for a trademark and not to the revocation of it. As we all know, the Redskins filed their application decades ago and to revoke it is just ridiculous.

So, once again, we have an Administration abusing its power to block or allow what they don't like or want in our society.  Just as when the IRS blocked the formation of tax exempt Tea Party organizations by excessively delaying approval of the tax-free status until after the 2012 elections.

References:

US Patent Office Rules Redskins Name Is Offensive, Cancels Trademarks: http://www.businessinsider.com/us-patent-office-cancels-redskins-trademarks-2014-6

U.S. patent office cancels Redskins trademark registration, says name is disparaging: http://www.washingtonpost.com/local/us-patent-office-cancels-redskins-trademark-registration-says-name-is-disparaging/2014/06/18/e7737bb8-f6ee-11e3-8aa9-dad2ec039789_story.html

15 U.S. Code § 1052: http://www.law.cornell.edu/uscode/text/15/1052

Can trademarks be cancelled?: http://law.freeadvice.com/intellectual_property/trademark_law/cancel_trademark.htm

Use It Right or Lose It -- Proper Trademark Usage Is Important to Every Business: http://www.ramseylawgroup.com/viewarticle.php?id=21