The US Patent and Trademark office is an engine of American capitalism and ingenuity. Throughout our country’s history, the patent office has ensured for the defense of the rights of inventors’ and companies’ intellectual property, allowing for the sorts of investments in new technology that have moved this country forward. The trademark division, meanwhile, secures companies against the risk of others using their names and distinguishing marks and the loss of profit as well as legal risks that might result.
Partly as a result of its work, intellectual property law in the United States has prevailed in maintaining the sort of legal language lost in other fields. Where positivism, the doctrine teaching that the government grants its citizens rights, has grown in influence throughout American history, patent law maintained that clarity of saying that the government “recognizes” an inventor’s or company’s rights to its own name and products—a fine but crucial distinction.
Unfortunately, the same influences that have long corrupted the protection of First Amendment rights in this country are rearing their head in the Patent and Trademark Office. After a year of campaigning by activists and a case before the Trademark Trial and Appeal Board, it was decided last week that six trademarks held by the Washington Redskins would no longer be protected by the Patent and Trademark Office on the grounds that the team’s name violates a prohibition on names that are disparaging, scandalous, contemptuous, or disreputable.
This prohibition has the sort of prima facie agreeability of many restrictions on free speech. After all, who wants to deal with companies and organizations that are disparaging, scandalous, contemptuous, or disreputable? However, as with other actions by government to curb free speech, the issue at hand is not whether one agrees with the statement or, in this case, team name in question. It is a matter of the government remaining limited to its proper purpose: the protection of individual rights against force and fraud.
The Redskins’ team name may be offensive to some, but the right to free speech must, by necessity, include the right to be offensive. Offensiveness is an entirely subjective standard that has no place in the law. It establishes that the right of an individual to free expression and intellectual property depends upon the emotional responses that their creations invoke in another person. Implicitly, it holds that individuals are free to create and promote their products not by right but at the pleasure of society at large— hardly a rights-based argument.
The most dangerous implication of this ruling is how far it can be carried as precedent. If the patent division had always followed the same reasoning as the TTAB, how many luddite claims would have stood in the way of new technologies?
No doubt the invention of the automobile would have once been “scandalous” to the makers of horse-drawn carriages. It is harrowing to think how many corporations would lose their trademarks in today’s anti-business culture if attaining a “disreputable” status was sufficient grounds to strip them of all legal protections of their name. The US Copyright Office, a separate entity unto itself, would subject this country to immeasurable danger by applying the same standards to its protections. Some of the greatest ideas and art in the world today would be suddenly unmarketable should the publishing industry lose its copyrights to any titles deemed disparaging, scandalous, contemptuous, or disreputable.
The action taken by the TTAB is nothing more than backdoor censorship. Instead of the government outright banning speech, it has opted for the passive-aggressive approach of denying the team’s owners equal protection under the law on entirely subjective grounds. The offensiveness of the team’s name is no grounds for the denial of its owners’ rights, and in a society in which speech is still largely free, those who wish to see it changed have a wide array of avenues through which they can appeal to the public and pursue change. In doing so, they will be free to disparage, stoke scandal, show contempt, and attack the reputation of the Redskins’ owners— all thanks to the integrity of the First Amendment.