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[davepoobond]

are we going to see KKK branded shirts in a Target? probably not.

i dont think there's much to worry about when it comes to this ruling

 

[KingBroly]

are we going to see KKK branded shirts in a Target? probably not.

i dont think there's much to worry about when it comes to this ruling

Just because you have a trademark doesn't mean stores have to sell them or people will agree to manufacture them.

 

[GaimeGuy]

Why do the Washington redskins get legal protections to an offensive brand name? Consider they were the Washington ragheads. If a racist piece of shit like, say, Donald Trump wanted to exploit the Islamophobia in the country for business purposes, why should he have to pay the football team to use the raghead moniker in his merchandise? Why is the government protecting the team's claim to a brand's evoked speech?

The fact that Redskin is offensive means it has some generic meaning, which suggests it shouldn't be a trademark, no?

 

[davepoobond]

Just because you have a trademark doesn't mean stores have to sell them or people will agree to manufacture them.

that's my implication

 

[KHarvey16]

This will not hold up if brought to a higher court.

Well, maybe if Scalia is casting the deciding vote. But otherwise...

It won't hold up according to what?

 

[GaimeGuy]

I'm just confused because if a trademark has offensive meaning to it then it has value as free speech, so why should the government grant exclusive rights to its usage and ownership to any single party? Wouldn't that in and of itself violate the First Amendment?

 

[KHarvey16]

I'm just confused because if a trademark has offensive meaning to it then it has value as free speech, so why should the government grant exclusive rights to its usage and ownership to any single party? Wouldn't that in and of itself violate the First Amendment?

By that reasoning all trademarks violate free speech. But clearly that isn't the case.

 

[DragonSworne]

What a load of bullshit. We can put restrictions on abortion but we can't ban fucked up trademarks and logos?

You can't have it both ways.

 

[Makonero]

What a load of bullshit. We can put restrictions on abortion but we can't ban fucked up trademarks and logos?

You can't have it both ways.

Abortion is free speech? Huh?

 

[davepoobond]

What a load of bullshit. We can put restrictions on abortion but we can't ban fucked up trademarks and logos?

You can't have it both ways.

you can't?

that's exactly what is happening lol. also they are totally different things...

 

[DragonSworne]

Abortion is free speech? Huh?

Abortion has a better arugement for being free speech than a trademark. But that's not my point. My point is we put restrictions on one constitution amendment but not another. We can't have it both ways.

But hey, what ever the lobbyists wants, they get.

 

[KHarvey16]

So I can't go over 55 on the highway but a company can register an offensive trademark?!?! Ridiculous!!!!

 

[Simply Sarah]

I'm just confused because if a trademark has offensive meaning to it then it has value as free speech, so why should the government grant exclusive rights to its usage and ownership to any single party? Wouldn't that in and of itself violate the First Amendment?

The purpose of trademarks is to preserve branding and prevent consumer confusion by clearly identifying products from a specific brand. It's to make it so I can't make my own company, call it Apple, and then release my own products in a way that would lead people to think they were from the Apple everyone knows.

 

[GoldenEye 007]

Abortion has a better arugement for being free speech than a trademark. But that's not my point. My point is we put restrictions on one constitution amendment but not another. We can't have it both ways.

But hey, what ever the lobbyists wants, they get.

I don't think abortion has ever been a free speech issue? Also, abortion is something not exactly covered explicitly (or at all) in the constitution like free speech is.

 

[Makonero]

Abortion has a better arugement for being free speech than a trademark. But that's not my point. My point is we put restrictions on one constitution amendment but not another. We can't have it both ways.

But hey, what ever the lobbyists wants, they get.

Abortion isn't a constitutional amendment. I'm sorry, I'm really confused, what are you trying to say?

 

[GaimeGuy]

By that reasoning all trademarks violate free speech. But clearly that isn't the case.

Well if you're going to take the simple view that a government can't just say what is and isn't offensive, libel slander, threats, bomb scares etc need to be handled differently. I think it's quite clear that just because the First Amendment protects free speech as a core value of society doesn't mean that you can say whatever you want wherever you want whenever you want however you want and in any form without legal repercussions.

 

[Simply Sarah]

Well if you're going to take the simple view that a government can't just say what is and isn't offensive, libel slander, threats, bomb scares etc need to be handled differently. I think it's quite clear that just because the First Amendment protects free speech as a core value of society doesn't mean that you can say whatever you want wherever you want whenever you want however you want and in any form without legal repercussions.

True, but just because some exceptions exist doesn't mean that any and all exceptions are therefore valid and justified.

 

[DragonSworne]

Abortion isn't a constitutional amendment. I'm sorry, I'm really confused, what are you trying to say?

Abortion is considered protected under the 14th Amendment. Trademarks are considered protected under the 1st.

We put restrictions on the abortions but not trademarks?

The first amendment doesn't say shit about trademarks. Nice try guys.

 

[KHarvey16]

Well if you're going to take the simple view that a government can't just say what is and isn't offensive, libel slander, threats, bomb scares etc need to be handled differently. I think it's quite clear that just because the First Amendment protects free speech as a core value of society doesn't mean that you can say whatever you want wherever you want whenever you want however you want and in any form without legal repercussions.

The process is weighing the effects of the speech against the benefits of protecting it. Libel and slander have rather narrow definitions in the US and are pretty hard to prove (they're also civil matters on the federal level). It's been determined by the courts that protecting the freedom to intentionally spread lies about a person that cause harm to them or their business is not worth preserving that outcome. Similarly with direct, specific threats. In this case merely hurting feelings is deemed unworthy of removing that protection.

 

[davepoobond]

Abortion is considered protected under the 14th Amendment. Trademarks are considered protected under the 1st.

We put restrictions on the abortions but not trademarks?

The first amendment doesn't say shit about trademarks. Nice try guys.

the 14th amendment doesnt say shit about abortion, either.

also, freedom of speech is much more cleanly stated. trademarking is not censorship.

 

[DragonSworne]

the 14th amendment doesnt say shit about abortion, either.

also, freedom of speech is much more cleanly stated.

I know that. I have a hard time seeing how a trademark is considered free speech. But even when we accept that trademarks are free speech, the government has still put limits on it.

https://en.wikipedia.org/wiki/United_States_free_speech_exceptions

 

[Dega]

Fine by me

 

[Squirrel Killer]

nobody is saying they can't use the name, the government just isn't obligated to give them legal protection from other people using it.

Actually, per this very decision, the government is obligated to give registrants of offensive trademarks legal protection from other people using it.

So in essence one could argue trademarks are government speech and it can refuse to endorse it.

Anyone can argue anything, but it seems the court found that trademarks weren't.

I think the only way someone could come to this is a mix of the 14th and 1st. But courts have already restricted speech in places like public airwaves because the government has a place in endorsing it.

I don't believe the justification of restricted speech in broadcasting is based on that the government "endorses" it. Rather, they regulate it based on it being scare and allocate it out for the "public good."

Can you explain how mixing the 14th and 1st amendments would allow such a restriction of speech? I'm not clear on how those would combine to allow that.

This is all kinds of horrible reasoning. Again they could go the 14th+1st amendment root but just the first amendment root seems counter to so many precedents on the government being able to restrict speech if it becomes government speech.

https://en.wikipedia.org/wiki/Government_speech

This is the very thing the supreme court just decided on the confederate license plates

http://www.scotusblog.com/case-files/cases/walker-v-texas-division-sons-of-confederate-veterans-inc/

The government is the "author" of expressive portion of license plates, either creating the design or overseeing the process. The design of a license plate is "speech." Registering a trademark is just notating a fact. It's the difference between writing something in a book and checking a box that yes, something was written in that book.

 

[ZackieChan]

I never said there were or even should be no restrictions or hoops to jump or through and neither is the court in this case. It's just saying that one specific kind of restriction isn't allowed. None of that changes the fact that the PTO is supposed to allow registration barring certain exceptions, the wisdom and constitutionality of which are not up for evaluation in this case.



The only higher court is the U.S. Supreme Court and my view is that the only votes I'd be fairly certain about on this would be four to affirm.

I guess I'm just not seeing how failure to grant trademark rights is in any way restricting speech.

 

[davepoobond]

I know that. I have a hard time seeing how a trademark is considered free speech.

i think you're confusing two concepts here. Government can't censor speech (that's the only way they'd be able to impede freedom of speech). So they can't USE trademark laws to limit freedom of speech.

that is essentially what this ruling is saying. the GOVERNMENT can't use trademarks and its associated laws to stop people's freedom of speech. private companies do not have to provide freedom of speech protections to other people


responding to your edited:

I know that. I have a hard time seeing how a trademark is considered free speech. But even when we accept that trademarks are free speech, the government has still put limits on it.

https://en.wikipedia.org/wiki/United_States_free_speech_exceptions

you can see there that under the trademarking thing, the only carve out is to preserve the speech marketplace. using trademark laws to limit the "speech marketplace" is what is in question here.

 

[freethoughtbubble]

This thread is making my head hurt. This ruling is a good thing. Offensive speech should be censured by society, not censored by the government. The government should not get to decide what is or is not offensive. The facts of this particular case even illustrate why: an asian-american band repurposed an asian-american slur to make a point -- whether that point was to be humorous or ironic, or to make a statement that such words no longer hurt, is irrelevant -- and the PTO denied the band trademark protection based on its subjective opinion that the name was offensive to asian-americans. They don't have the right to make that call, and thank goodness.

 

[GaimeGuy]

This thread is making my head hurt. This ruling is a good thing. Offensive speech should be censured by society, not censored by the government. The government should not get to decide what is or is not offensive. The facts of this particular case even illustrate why: an asian-american band repurposed an asian-american slur to make a point -- whether that point was to be humorous or ironic, or to make a statement that such words no longer hurt, is irrelevant -- and the PTO denied the band trademark protection based on its subjective opinion that the name was offensive to asian-americans. They don't have the right to make that call, and thank goodness.

But they're not censoring speech here. They're weakening a football team's brand protection

 

[outunderthestars]

This was the right move, regardless of the hurtfulness of the nickname.

This is how I feel as well.

 

[DragonSworne]

This thread is making my head hurt. This ruling is a good thing. Offensive speech should be censured by society, not censored by the government. The government should not get to decide what is or is not offensive. The facts of this particular case even illustrate why: an asian-american band repurposed an asian-american slur to make a point -- whether that point was to be humorous or ironic, or to make a statement that such words no longer hurt, is irrelevant -- and the PTO denied the band trademark protection based on its subjective opinion that the name was offensive to asian-americans. They don't have the right to make that call, and thank goodness.

What course of action does the government have after a trademark is found offensive by people? Right now there is none, but the government does have action toward other forms of offensive speech.

 

[KingBroly]

But they're not censoring speech here. They're weakening a football team's brand protection

This case isn't the Redskins case. It has implications for the Redskins case, but it is not that case.

If the Government appeals this case to the Supreme Court (which I think they will since they want the power the enforce this kind of thing), it can either:
A - Be denied, and therefore the Redskins win their trademark case before it even got to court
B - Be accepted, meaning 4 justices on the court want to hear the case. In that case, 5 justices would have to overturn this ruling. If you know the court's history with free speech and trademark cases, you realize that this is probably not going to be overturned.

 

[WonkyPanda]

I guess I'm just not seeing how failure to grant trademark rights is in any way restricting speech.

Because the REASON for denying the mark is the issue.

It's analogous to a store owner not hiring someone because they feel like it (okay) and a store owner not hiring someone because they're black (not okay).

The reason for the denial of the mark here, vis-a-vis offensive moniker, isn't sufficient justification on its own right for a denial of a mark because of the inhibition of Speech.

There are clearly laid out measures for a government to deny speech; it's obviously not an immune amendment. However, the scrutiny of such measures is difficult to meet in many instances.

And to whomever says that a trademark is not speech is patently wrong on many, many levels.

 

[GoldenEye 007]

But they're not censoring speech here. They're weakening a football team's brand protection

Well, that is what would happen anytime a trademark application is revoked or denied.

What is the reason the government cited for weakening that protection? It was because they felt the mark was offensive. That's not a good enough standard for a government agency to take given the realities of the 1st amendment.

 

[Massive Duck. C.M.]

are we going to see KKK branded shirts in a Target? probably not.

Maybe Walmart

 

[Rusty "Two Shacks" Elford]

What course of action does the government have after a trademark is found offensive by people? Right now there is none, but the government does have action toward other forms of offensive speech.

By what standard do you suggest the offensiveness of a proposed trademark be judged? I'd guess that by whatever measure you propose, one would be able to find dozens, likely hundreds, if not thousands of already issued trademarks that violate said rubric. Should they all be retroactively cancelled?

 

[ZackieChan]

Because the REASON for denying the mark is the issue.

It's analogous to a store owner not hiring someone because they feel like it (okay) and a store owner not hiring someone because they're black (not okay).

The reason for the denial of the mark here, vis-a-vis offensive moniker, isn't sufficient justification on its own right for a denial of a mark because of the inhibition of Speech.

There are clearly laid out measures for a government to deny speech; it's obviously not an immune amendment. However, the scrutiny of such measures is difficult to meet in many instances.

And to whomever says that a trademark is not speech is patently wrong on many, many levels.

So you're arguing about something I'm not arguing about, then presenting the argument I AM making as "patently wrong on many, many levels," without stating those levels. Again, the granting of a trademark registration gives them more rights, but no less rights than they would have had if they hadn't been granted that registration. In fact, GRANTING the registration to ONE party effectively suppresses the ability of other parties to use that particular speech. Which is the greater crime?

i think you're confusing two concepts here. Government can't censor speech (that's the only way they'd be able to impede freedom of speech). So they can't USE trademark laws to limit freedom of speech.

that is essentially what this ruling is saying. the GOVERNMENT can't use trademarks and its associated laws to stop people's freedom of speech. private companies do not have to provide freedom of speech protections to other people

Again, how is the denial of a registration censoring or preventing the speech? As with the Islamisation of America mark denoted in the case, how is the trademark holder prevented from using that mark? They just don't have access to the affirmative rights granted by the USPTO. I'm also not buying the courts analogies to things like registering a corporation, but whatever. I'm interested to see how this one shakes out.

 

[GoldenEye 007]

Again, how is the denial of a registration censoring or preventing the speech? As with the Islamisation of America mark denoted in the case, how is the trademark holder prevented from using that mark? They just don't have access to the affirmative rights granted by the USPTO. I'm also not buying the courts analogies to things like registering a corporation, but whatever. I'm interested to see how this one shakes out.

Because they stated the reason for the denial/revocation was due to the fact they found the mark offensive. Not because it was confusing to other existing marks or other criteria they are supposed to look for.

Whenever a government agency makes an adverse action against you citing offensiveness or other related areas, they're going to have an extremely tough time defending that action because of the existence of the 1st amendment.

Again while having a trademark is not mandatory, the fact the government provides the service means they will have to operate within the constitution in their decision making process.

 

[davepoobond]

Again, how is the denial of a registration censoring or preventing the speech?

they are making a judgment on its content that is arbitrarily dictated by the government. what is "offensive" is always fluid

As with the Islamisation of America mark denoted in the case, how is the trademark holder prevented from using that mark? They just don't have access to the affirmative rights granted by the USPTO. I'm also not buying the courts analogies to things like registering a corporation, but whatever. I'm interested to see how this one shakes out.

depends on what grounds it was rejected. was it rejected because it was offensive?

 

[timetokill]

Good ruling.

The Redskins name change should be because the NFL and fans went stand for it, but because of some government stooges deciding what language is hurtful in some given day.

 

[freethoughtbubble]

But they're not censoring speech here. They're weakening a football team's brand protection

Wrong case, but I get the point you're making. I haven't read the decision yet, but I believe the argument would proceed something like this: (1) PTO is permitted to deny registration of offensive marks, even when said marks are intended to make a political or satirical point (e.g., an asian-american band named "The Slants"); (2) this new broad and, let's face it, arbitrary power prevents The Slants, and bands like them, from effectively monetizing their band name; (3) as a result, many such bands will opt for "inoffensive" names to avoid the problem, even though they would go for the edgier name if not for the PTO's discretion.

The end result is that such expression is chilled. The really perverse thing is that it seems like The Slants was intended to be an ironic name -- not racist itself but satirizing racism. And yet the PTO denied the mark because it thought it was racist.

What course of action does the government have after a trademark is found offensive by people? Right now there is none, but the government does have action toward other forms of offensive speech.

You're being circular. I don't accept that the government should have a course of action here.

 

[DragonSworne]

they are making a judgment on its content that is arbitrarily dictated by the government. what is "offensive" is always fluid



depends on what grounds it was rejected. was it rejected because it was offensive?

You aren't explaining how denying a trademark is a limitation on speech.

Why is it acceptable to deny a trademark based on plagerism but not deny it based on offensiveness? Both limit freedom of speech.

 

[davepoobond]

You aren'the explain how denying a trademark is a limitation on speech.

context matters.

denying a trademark because it is "offensive" = limitation of speech

denying a trademark because someone else has it = NOT a limitation of speech


as it pertains to this case you cannot deny a trademark because it is "offensive" -- that is a function of censorship. denying a trademark because someone else has it is a normal function of the trademark system.

what are you asking to understand really?

You aren't explaining how denying a trademark is a limitation on speech.

Why is it acceptable to deny a trademark based on plagerism but not deny it based on offensiveness? Both limit freedom of speech.

plagiarism isn't free speech. its copying someone else's free speech for your monetary gain. stealing IP/copyright law is different from trademark laws.

 

[Rest]

i think this is a good thing?

Free speech is a good thing, so yes it is.

 

[KHarvey16]

You aren't explaining how denying a trademark is a limitation on speech.

For the same reason denying a driver's license based on race is a violation of civil rights. The function (a license or a trademark) is not constitutionally guaranteed, but issuance is done by the government who must abide by the constitution.

 

[Flying Toaster]

Good ruling. The NFL should be handling this anyways. The name is offensive.

 

[Brakke]

Feels like a misread of free speech to me. Refusal to grant copyright is not the same as restricting speech (in fact, refusing copyright makes speech freer, lol; that way the Redskins can use the name and also so can I).

The first amendment is a weird place to turn for this. Copyright doesn't strike me as in the same domain. Is free speech even a positive right? The text bans the government from abridging your right, but doesn't oblige the government to ensure that you have the platform (and in the specific form that you want it) on which to speak.

 

[KHarvey16]

Feels like a misread of free speech to me. Refusal to grant copyright is not the same as restricting speech (in fact, refusing copyright makes speech freer, lol; that way the Redskins can use the name and also so can I).

The first amendment is a weird place to turn for this. Copyright doesn't strike me as in the same domain. Is free speech even a positive right? The text bans the government from abridging your right, but doesn't oblige the government to ensure that you have the platform (and in the specific form that you want it) on which to speak.

The first amendment means you can't be denied a service provided by the state based on speech. Copyright is administered by the government and obviously must abide by the rules of that government.

 

[Brakke]

The first amendment means you can't be denied a service provided by the state based on speech. Copyright is administered by the government and obviously must abide by the rules of that government.

But of course the government denies services all the time based on speech. You seem to wanna make a driver's license example: if I go in and fail the test I don't get a license. That I was exercising my right to free speech by saying "yellow light means go faster" doesn't protect me from being denied a license, lol.

 

[GoldenEye 007]

But of course the government denies services all the time based on speech. You seem to wanna make a driver's license example: if I go in and fail the test I don't get a license. That I was exercising my right to free speech by saying "yellow light means go faster" doesn't protect me from being denied a license, lol.

That's not how any of this works.

 

[davepoobond]

But of course the government denies services all the time based on speech. You seem to wanna make a driver's license example: if I go in and fail the test I don't get a license. That I was exercising my right to free speech by saying "yellow light means go faster" doesn't protect me from being denied a license, lol.

but the government doesn't say your answer is offensive as the reason it being denied

 

[freethoughtbubble]

I think some context might be in order. From an NPR article on The Slants and the controversy surrounding their name:

Tam founded The Slants. He plays bass and describes the group's sound as "Chinatown Dance Rock," very '80s and very nostalgic. But it's not the sound that's landed the band in headlines — it's the eyebrow-raising name.

Tam tells me that with it, he's making a point about Asian stereotypes. In his day job, he's a marketing director for a nonprofit. But in making this point, he's spent six years as an unlikely advocate of free speech and Asian-American issues. In the fight to register his band's name, he has enlisted linguists and researchers, speaking at colleges across the country. He's even sat through an unusual appeal process.

. . .

It's the latest twist in a saga that started in 2007, when Tam — who's of Taiwanese and Chinese descent — had the idea for an Asian-American group. He was brainstorming names with a friend, and wondered, "What's a stereotype — what do you think all Asians have in common?" The friend told him, "Oh, it's the slanted eyes."

Tam thought this could be a good chance to reclaim the word.

"I remember thinking immediately about 'The Slants' [as a potential name], which is an '80s, new wave band, which is music we want," Tam recalls. "We can talk about it being our 'slant on life,' as being people of color."

http://www.npr.org/sections/codeswi...ounder-fights-government-to-retain-the-slants

But of course the government denies services all the time based on speech. You seem to wanna make a driver's license example: if I go in and fail the test I don't get a license. That I was exercising my right to free speech by saying "yellow light means go faster" doesn't protect me from being denied a license, lol.

Dude.