Patent of­fice: Red­skins name drew no pub­lic com­plaints

The Washington Times Weekly - - Politics - BY JIM MCELHATTON

The re­cent de­ci­sion by an ob­scure ad­min­is­tra­tive law board to can­cel the Wash­ing­ton Red­skins’ trade­mark reg­is­tra­tions came de­spite the fact the agency hadn’t re­ceived a sin­gle let­ter from a mem­ber of the pub­lic com­plain­ing about the team’s name, records show.

The Trade­mark Trial and Ap­peal Board, which is part of the U.S. Patent and Trade­mark Of­fice, ruled last month that the name was dis­parag­ing to Amer­i­can In­di­ans. The team is ap­peal­ing that de­ci­sion.

Politi­cians, in­clud­ing Pres­i­dent Obama, have waded into the team name con­tro­versy, with many say­ing the team should change its name. But de­spite wide­spread me­dia at­ten­tion and a le­gal fight that goes back more than a decade, the USPTO re­cently ac­knowl­edged there’s hardly been an avalanche of pub­lic com­plaints filed with the agency.

In fact, the agency doesn’t have any record of cor­re­spon­dence from the pub­lic about the Red­skins’ name — ex­press­ing sen­ti­ments one way or an­other — prior to the board’s June 18 rul­ing.

A Free­dom of In­for­ma­tion Act re­quest from The Wash­ing­ton Times ask­ing for any com­mu­ni­ca­tions from Congress or the pub­lic pro­duced just 13 pages of records.

Six of those pages were a hand­writ­ten, me­an­der­ing let­ter from a man in Lub­bock, Texas, whose po­si­tion on the team name con­tro­versy isn’t clear. An­other writer con­grat­u­lated the ap­peals board af­ter its de­ci­sion but ques­tioned whether the judges would “go af­ter” the United Ne­gro Col­lege Fund. Both letters were sent af­ter the rul­ing.

In ad­di­tion, there were a few pages of email cor­re­spon­dence be­tween staffers for the USPTO and Del­e­gate Eleanor Holmes Nor­ton, the District of Columbia’s non­vot­ing mem­ber of Congress. Ms. Nor­ton has been a vo­cal critic of the team name, but her staffers were mostly seek­ing back­ground in­for­ma­tion on the case.

The board made its rul­ing last month based on a le­gal chal­lenge from Amanda Black­horse and four oth­ers, who pe­ti­tioned the USPTO against the Red­skins, call­ing the team name of­fen­sive to Amer­i­can In­di­ans. Af­ter the rul­ing, she called the de­ci­sion a “great vic­tory for Na­tive Amer­i­cans and all Amer­i­cans,” say­ing the team’s name was “racist and deroga­tory.”

Both sides in the widely pub­li­cized case in­tro­duced thou­sands of pages of ev­i­dence and tes­ti­mony from ex­perts. And the de­ci­sion hinged, in part, on the tes­ti­mony of lin­guis­tics ex­perts.

The Red­skins de­clined to com­ment through an at­tor­ney Mon­day, but an at­tor­ney for Ms. Black­horse said the paucity of pub­lic in­put isn’t en­tirely un­ex­pected de­spite the in­tense me­dia cov­er­age.

“There are reg­i­mented pro­ce­dures in which the USPTO makes its de­ci­sions, and there is no mech­a­nism for in­put from the gen­eral pub­lic,” at­tor­ney Jesse A. Wit­ten wrote in an email. “This is not at all like the no­tice and com­ment pe­riod that ac­com­pa­nies a reg­u­la­tory rule mak­ing.”

Re­becca Tush­net, a law pro­fes­sor at Ge­orge­town Univer­sity, said the patent of­fice isn’t like the Federal Trade Com­mis­sion or Food and Drug Ad­min­is­tra­tion, where there can be a pub­lic com­ment pro­ce­dure for in­di­vid­ual cases.

“If you don’t have a par­tic­u­lar stake … there’s no ob­vi­ous point at which your in­put can be given,” she said. “I’m sure that doesn’t stop people from send­ing in cor­re­spon­dence, but I hon­estly wouldn’t know how to go about get­ting it read in an in­di­vid­ual case.”

The USPTO did not re­spond to phone calls Mon­day.

The trade­mark ap­peals board based its rul­ing on part of the law that says a trade­mark can be can­celed if it is deemed dis­parag­ing. In the case of the Red­skins, the board said the drop in the use of the word in the last century showed it was be­com­ing a slur. The board also pointed to re­search that found at least 30 per­cent of Amer­i­can In­di­ans sur­veyed found the name of­fen­sive.

The agency’s de­ci­sion doesn’t mean the Red­skins are barred from us­ing the team name, but it does make it harder for them to as­sert their brand against po­ten­tial copy­cats.

The same ap­peals board was over­ruled on ap­peal in 2003 af­ter rul­ing against the Red­skins in a sim­i­lar case. Bob Raskopf, the team’s trade­mark at­tor­ney, said in a state­ment af­ter the most re­cent rul­ing that he ex­pects the same out­come.


The Trade­mark Trial and Ap­peal Board, which is part of the U.S. Patent and Trade­mark Of­fice, ruled last month that the Wash­ing­ton Red­skins’ team name was dis­parag­ing to Amer­i­can In­di­ans. The team is ap­peal­ing that de­ci­sion.

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