Patent office didn’t receive a single public complaint before stripping Redskins trademarkBy Jim McElhatton-The Washington Times
Tuesday, July 1, 2014
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.
“This case is no different from the earlier case, where the board canceled the Redskins‘ trademark registrations and where a federal-district court disagreed and reversed the board,” he said.
Even if the public hasn’t been very vocal with the agency, politicians have been quick to let the media and Redskins know where they stand.
Last fall, Mr. Obama said he would think about changing the name if he were team owner Dan Snyder.
Senate Majority Leader Harry Reid, Nevada Democrat, has vowed not to attend any games until the team changes its name.
And Sen. John McCain, Arizona Republican, said last week at an Associated Press Sports Editors meeting that while he doesn’t think Mr. Snyder should be forced to drop the Redskins‘ name, he’d “probably” change the team name nonetheless.
http://www.washingtontimes.com/news/2014/jul/1/redskins-name-drew-no-public-complaints-patent-off/?page=2#ixzz36MOZhhgU
