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June 2012
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OVERREACH Trademark office attempts to be enforcer on speech

We can understand how the term "redskins" could be intended as and perceived as offensive. But we don't see it as being so in the context of its longstanding use as the symbol of Washington's NFL football team.

That's why we take umbrage at the decision by two of three Patent and Trademark Office judges who earlier this week voted to strip the team of trademark protection on the grounds that "Redskins" denigrates Native Americans.

This battle of political correctness has surrounded the Redskins for some time now, with numerous self-proclaimed activists seeking to force the 80-year-old franchise to change its name to something more "acceptable" (maybe they could be the Washington Atheists, for instance).

Washington is not alone in the sports world on this front. The Cleveland Indians, the Atlanta Braves and the Kansas City Chiefs, among others, have come under varying degrees of criticism and pressure for their use of Indian symbols and mascots.

But forcing the Redskins to change their name has become something of a liberal cause celebre, with several major media outlets that cover the Redskins casting their lot with the PC crowd. Some have served notice they will no longer use the term "Redskins" when writing about or otherwise covering the team.

For his part NFL Commissioner Roger Goodell says the term is not intended to be offensive. The Wall Street Journal quotes Goodell as saying "this is â ¦ a football team that's had that name for 80 years and has presented the name in a way that it has honored Native Americans."

That's how the dissenting judge on the patent and trademark panel saw it as well. In voting to strip the trademark from the Redskins the two prevailing judges cited as their basis dictionary entries that say the term redskins is "often offensive" and a 21-year-old anti-Redskins resolution by the National Congress of American Indians. The dissenting judge however said there is no evidence the term was considered or intended to be offensive when the Redskins registered it decades ago, and that is the legal standard that should apply.

The significance of the decision has to do with marketing of Redskins caps, jerseys and other paraphernalia. The team and the NFL make tens of millions of dollars from licensing and sale of such products, and lack of trademark protection makes life a lot easier for people who make and sell counterfeit Redskins products. The trademark decision is being appealed however and even if the Redskins lose, they still could rely on common law trademarks for some protection.

The legal issues aside, what we find troubling here is the appearance of an attempt by a judicial panel to regulate speech that it deems "offensive" by applying the hammer of stripping away validly obtained legal protections and exposing the Redskins to millions in potential lost revenue. We find this particularly troubling when there is such broad debate and disagreement among the general public about use of the term, and even the judges themselves are divided over the issue.

The increasingly ubiquitous efforts on college campuses to regulate speech and punish routinely held beliefs or opinions as offensive or insensitive is troubling enough. But when federal agencies like the Patent and Trademark Office start bringing their considerable powers to bear in attempts to regulate speech, that's downright scary.

We hope and anticipate that the Redskins will prevail in their appeal of this incidence of government overreach.

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