Indian givers (part 3)
When the PTO’s decision revoking the REDSKINS registrations was affirmed by the TTAB, I asked, as others — including the NFL — have asked, whether such sociological (not to say historicist) time travel concerning the REDSKINS mark comports with constitutional due process. It’s a serious question.
Indeed, it seems that when it comes Section 2(a), pretty much anything goes, procedurally, at the PTO, as long as the outcome is “no.” There’s one category of exceptions, as The Slants noted on their appeal. And it’s the exception that proves the rule. It’s hard to see how it can be otherwise when slurs referring to what was once called lifestyle choices have been allowed registration while those referring to ethnicity are not.
Could one answer by saying that the statute doesn’t prohibit disparagement of behavior or, even, perhaps, sexual identity, but it does prohibit disparagement of ethnic groups?
There’s only one problem with that. Here’s the statute (emphasis added, obviously):
1052. Trademarks registrable on the principal register; concurrent registration No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it–
(a) Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute . . .
So, what are we talking about here? The relevant language is “disparage . . . persons.” Are ethnic groups “persons”? Are any groups of persons, persons?
Not according to TMEP 1203.03(a), which explains, based on the cases, that “Section 45 of the Act, 15 U.S.C. §1127, defines “person” and “juristic person” as follows:
The term “person” and any other word or term used to designate the applicant or other entitled to a benefit or privilege or rendered liable under the provisions of this Act includes a juristic person as well as a natural person. The term “juristic person” includes a firm, corporation, union, association, or other organization capable of suing and being sued in a court of law.
So what gives? This definition of “person” doesn’t seem to include races, colors, “peoples,” or “nations” in the ethnic sense.
The answer seems to be all the way down in TMEP 1203.03(d), which defines “disparagement.” Citing cases such as Boswell v. Mavety Media Group Ltd., 52 USPQ2d 1600 (TTAB 1999), the rule says that under Section 2(a), “whether a mark is found to be disparaging depends on the context and the persons or groups of persons the mark is directed toward.” This definition detaches the verb “disparaged” from the (relevant) object “persons” in the statute and inserts a concept, “group.” But unless such a group is a “juristic person,” a prohibition on registrations that disparage groups is not found in the Lanham Act. It surely would not have been intended by its drafters. (Yes, the brief for The Slants did mention this aspect of the vagueness problem.)
Of course, if a court ever adopted this analysis and asked, wait a minute, where does this statute even authorize protection of ethnic or religious groups from being offended, that would not affect legislation such as the Honda bill, if such were ever passed.
This statutory mystery, incidentally, is one respect in which the “scandalous and offensive” (i.e., dirty) cases differ from the “disparaging” (i.e., ethnic slur) categories of Section 2(a) prohibition. The former, even if it suffers from its own forms of vagueness problems (and it surely does), at least proceeds from a relatively obvious statutory mandate. The vagueness it does suffer from just puts it into the problematic “I know it when I see it” department of government-regulation-of-the-dirty… which is not my bailiwick.
So yes, Section 2(a) is a slow-motion train wreck. And the only question, really, is when, not if. But in the meantime, a ridiculous amount of back-flipping, head-standing and spitting of wooden nickels goes on at the PTO to make Section 2(a) “work.”
And while until now there only seemed to be growing correlation between the PTO’s working of 2(a) rejections and popular and political sentiment, power plays such as the Honda bill — useful as a political “message” whether it’s passed or not — have turned up the pressure on the professionals at the PTO in a way that is quite explicit.
So has the White House’s application of raw political force by use of the battering-ram entry of the Justice Department into the REDSKINS controversy. From an Administration that has used the very conspicuous refusal to defend statutes from legal challenge as a very potent tool of policy, this level of involvement in the appeal of a trademark refusal is a very big deal.
And this is, none of it, what the PTO was built for.
From the point of view of good government, Section 2(a) is a train wreck. From the point of view of the rule of law, it’s a failure. From the point of view of justice, neither the policy nor the way it is being executed make the grade.
Yes, bad trademarks happen to good people. But how many miles of highway are we going to re-route to avoid some potholes? Do the ends justify any means?
So: Yeah, says I, go ahead, Congress. Man up and pass Honda’s law. Let’s do it through the front door. And maybe, with an explicit, political expression of what’s going on here, the issue will get the judicial review it deserves in the unlikely event, given what is percolating before the courts now ( unlike the flotsam that has gone before) it has not yet gotten it by then. These days some judges seem much more comfortable, however, deferring to agencies than to legislatures.
Still, let’s not get ahead of ourselves, for Honda’s bill is, after all, going nowhere fast. In contrast, the REDSKINS litigation and the appeal of TTAB’s decision on THE SLANTS are alive. If one these cases is not the one that trips the line of outrageousness on this Section 2(a) business conspicuously enough, it’s only a matter of time, if there is any rule of law left, that another one sooner or later reshuffles the whole deck.
Journalists don’t understand this stuff; nor do too many members of Congress. And I don’t understand what they do, either. But there is some serious judging ahead on these matters. We have every right to hope their adjudication will match the seriousness of the issues at stake, and not merely — ideally, not at all — their stylishness.