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Public outcry may be able to keep offensive trademarks at bay

June 20, 2017

While Monday’s decision from the Supreme Court of the United States that barred the federal government from asserting which names are offensive has been viewed as a victory for the Washington Redskins, a high school in northern Indiana may provide an example of what the eight justices were trying to accomplish.

The unanimous court (Justice Neil Gorsuch did not participate) ruled that the U.S. Patent and Trademark Office was violating free speech guarantees when it denied protection to certain terms and monikers it deemed to be disparaging. In Matal v. Tam, 15-1293, the justices found the disparagement provision of the Lanham Act, which prohibits the registration of trademarks that may “disparage…or bring…into contempt or disrepute” any group of individuals, beliefs, institutions or national symbols, was unconstitutional under the First Amendment’s Free Speech Clause.

Writing for the majority, Justice Samuel Alito said the provision “offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”

Douglas Gallagher, intellectual property attorney at SmithAmundsen LLC’s Indianapolis office, was surprised by how broad the decision was. He had expected the Supreme Court to offer a more narrowly tailored opinion, but he views the ruling as consistent with the justices’ previous stances on free speech.

“The take away from this is that the Supreme Court seems to be pretty unanimous behind the idea that the free speech clause of the First Amendment is very fundamental and very important,” Gallagher said. “It sends a strong message from the court that free speech is a fundamental right.”

This case began when an Asian-American rock band’s application to trademark its name, “The Slants,” was denied. The USPTO viewed the name as a racial slur but the musicians argued they were trying to reclaim the term and diminish its offensiveness.

Still many articles recapping the decision characterized it as a win for the Washington, D.C., football team. In 2014, the team’s trademark, “Redskins,” was cancelled after the USPTO determined the name offended Native Americans. Now it is believed the team will be able to register and protect their name.

Gallagher pointed out, the Supreme Court is not greenlighting offense speech but rather is preventing the government from choosing sides. “The court is essentially allowing the public to be the police on what is appropriate and what is not,” he said.

Amie Peele Carter, intellectual property attorney at Faegre Baker Daniels LLP, anticipates the decision will lead to a “significant number” of applications for disparaging marks. Even so, that does not mean they will be registered since the USPTO considers many factors when reviewing an application.  

“Whether the public will be able to keep this at bay is another question,” she said in an email. “Younger generations seem to have more tolerance for word choices that others may consider offensive. However, I do think there will be public backlash against names that might be offensive to a particular group of people. Whether the opposition in those situations will have the time and resources to try to stop organizations from adopting, using and potentially registering those names will be another question.”

Public outcry is eventually what led to Goshen High School in Elkhart County to switch from being the “Redskins” to being the “RedHawks” in 2016.

For 90 years, Goshen high school and middle school put the name on their sports uniforms and had a Native American mascot leading the cheers at home games. The dispute with the moniker had bubbled in the community for 20 years, said Diane Woodworth, superintendent of Goshen Community Schools, but the issue finally came to a head when a group persisted in raising the subject at every school board meeting.

The board members then held a series of hearings, soliciting comments from residents, parents and alumni. Supporters of the name said it was meant to honor, not disparage, while opponents said the moniker was demeaning to the Native Americans in the community.

The Pokagon Band of Potawatomi Indians occupies part of northern Indiana and southern Michigan. Woodworth recalled a meeting with the tribal leaders who would not say the name, referring to it as the “R-word,” because they considered it extremely offensive.

In a statement after the Supreme Court’s decision, the tribal council of the Pokagon Band of Potawatomi said issues like health care, education, and safe and affordable housing are the most pressing issues but they are also committed to curbing offensive behavior.

“The R-word crosses a line,” the tribal council said. “It’s derogatory and demeaning. Using the R-word perpetuates harmful stereotypes of Native Americans and continues the damaging practice of relegating Native Americans to the past and portraying us as a caricature.”

The council also noted studies that have shown the use of offensive terms such as “Redskins” as part of a school’s mascot, name or symbol has a detrimental effect on Native American students attending those educational institutions.

“To help ensure an educational environment that is safe, supportive and respectful for all students, including Native Americans, the council encourages all schools to eliminate the use of the term ‘Redskins’ as any component of their mascot, name or symbol,” the tribal council concluded.

Woodworth crystalized how words can offend by noting with 52 percent of the Goshen student body being Latino, the school would not consider a mascot named the “Brownskins.”

Finally, after the last passionate public hearing, the Goshen School Board voted 5 to 2 to retire the Redskins name and mascot.

School officials then convened a committee of high school and middle school students to lead the process of selecting a new moniker. The students took suggestions and then organized a vote, which included alumni who still lived in the area, on the top names. Also, a display case was set aside in the high school for plaques and memorabilia from the Redskins days.

Woodworth credited the student involvement with easing the hurt feelings. “I feel like the whole process helped us get through this,” she said, while noting “some people would go back to the Redskins name in a heartbeat.”

The name Redhawks is now emblazoned on the football field’s new artificial turf surface and the Goshen teams are playing under the new logo. But the change came at a price for at least one individual. Robert Duell, the school board member who after the final hearing offered the motion to retire the Redskins name was voted out in November 2016 election.    

        
 

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