Part one and part two of this three-part post were published earlier this week.
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.