Patent Office Did Not Receive Public Input Before Redskins Trademark Decision

| by Jared Keever

The appeals board of the U.S. Patent and Trademark Office that recently decided to cancel the trademark registrations for the Washington Redskins did not receive any complaints from the public about the team’s name before making its decision, newly released records indicate.

The Trademark Trial and Appeal Board of the USPTO ruled last month that the team name was “disparaging” to American Indians.

But a Freedom of Information Act request from The Washington Times turned up only a handful of documents, none of which were complaints about the name from members of Congress or from the general public. 

The request yielded two letters sent to the appeals board after the decision was announced. One letter stated no concrete position on the matter and the other applauded the decision.

The remainder of the documents consisted of email correspondence between board members and staff for Delegate Eleanor Holmes Norton, the District of Columbia’s nonvoting member of Congress. Norton has been a vocal critic of the team name, but the emails from her staffers mostly asked for information about the case.

The board rescinded the team’s registrations as the result of a legal challenge from American Indian activist Amanda Blackhorse. Her attorney, Jesse A. Whitten, said that the appeals board was free to make its decision without public input.

“There are regimented procedures in which the USPTO makes its decisions, and there is no mechanism for input from the general public,” Witten wrote in an email. “This is not at all like the notice and comment period that accompanies a regulatory rule making.”

Rebecca Tushnet, a law professor at Georgetown University, agreed. She said the USPTO did not operate like the Federal Trade Commission or the Food and Drug Administration where the public is invited to make comments.

“If you don’t have a particular stake there’s no obvious point at which your input can be given,” she said. “I’m sure that doesn’t stop people from sending in correspondence, but I honestly wouldn’t know how to go about getting it read in an individual case.”

The appeals board ultimately based its decision to rescind the registrations on research that showed that 30 percent of Native Americans found the name offensive. Board members also said that the drop in use of the word “redskin” showed the word was becoming a slur and could be seen as disparaging.

The board’s decision does not mean the team cannot continue to use the name, but it does make it more difficult for the team’s owner to seek trademark protections. 

A similar decision was overturned by an appeals court in 2003, and Redskins’ owner Dan Snyder has vowed to appeal the recent decision as well.

Blackhorse told The Daily Beast she was confident her side would win the appeal this time.

“Oh, I am very confident that we will get through the appeals process,” she said, adding that the last appeal was lost on a technicality.

“I was actually kind of hoping that [Snyder would] accept that he lost and give in. But of course he didn’t do that. I guess I’m too optimistic. I try to look at the good side of people,” Blackhorse said. “I’m sure someone can find a legal technicality somewhere, but I’m also hoping that a lot of the social change that is happening might be a deciding factor.”

The USPTO did not return calls to comment on the public input issue.

Sources: The Washington Times, The Daily Beast