Washington Redskins' lawyers enumerate other grossly offensive trademarks for the USPTO

[mknaomi]

@Nonentity

“Licensed Serial Killer” is trademarked? Darn, there goes my business plan.

USAF drones anyone? (ducks and hides in bunker)

[thekaz]

it’s your’s.

[Nonentity]

@aluchko

I pose to you the same example with copyright, heck, they could have just cancelled “The God Delusion” trademark to hurt sales that way

Pro tip: if you learn the difference between copyright and trademark, it will help you a lot in constructing an argument that actually has relevance to the issues involved. They are really not at all comparable in the way you’re trying to use them.

@aluchko

What’s the point of cancelling the trademark? If you think it will inhibit their ability to use the name Redskins they you are by definition inhibiting their freedom of speech.

You have it backwards. Them having a trademark on the word, by definition, inhibits other people’s freedom of speech. Cancelling a trademark just removes a government-supported additional value from that speech. They could continue using it if they really wanted to, but other people would be more able to use it in ways they wouldn’t like.

[anon50609448]

@aluchko

I pose to you the same example with copyright, heck, they could have just cancelled “The God Delusion” trademark to hurt sales that way, do you think that would have been acceptable?

What’s the point of cancelling the trademark? If you think it will inhibit their ability to use the name Redskins they you are by definition inhibiting their freedom of speech.

Well, God Delusion isn’t a trademark. It’s copyright, and they are completely different things legally. But if the government had rules about certain phrases that couldn’t be copyrighted then that wouldn’t be an infringement of free speech either. If we had no copyright or trademark laws whatsoever that would not affect the right to free speech.

What is the point of cancelling the trademark? I think the people who made the case did so in the hopes that it would make continuing to use the name unpalatable to a business whose goal is to make money. Making it undesirable for them to continue to use the name - because of their own motives - is not the same as interfering with their ability to use it. If that expression is important to them, then they could go ahead and keep doing it.

Of course they wouldn’t, but that’s the same as they couldn’t, and it’s not the same as the government passing a law that says they can’t. The US government won’t pass a law preventing me from using racial slurs, but it also won’t pass a law prevent my boss from firing me for using racial slurs to our customers.

I don’t know how many ways I can say that the right to expression is not a right to profit from your expression.

@Nonentity

Them having a trademark on the word, by definition, inhibits other people’s freedom of speech. Cancelling a trademark just removes a government-supported additional value from that speech.

A very good point well made!

[aluchko]

@Nonentity

Pro tip: if you learn the difference between copyright and trademark, it will help you a lot in constructing an argument that actually has relevance to the issues involved. They are really not at all comparable in the way you’re trying to use them.

Pro tip: I’m well aware of the difference, however I felt it was a useful comparison since both use economic leverage around the ability to use that speech to force the party to change the speech.

@Nonentity

You have it backwards. Them having a trademark on the word, by definition, inhibits other people’s freedom of speech. Cancelling a trademark just removes a government-supported additional value from that speech. They could continue using it if they really wanted to, but other people would be more able to use it in ways they wouldn’t like.

You dodged the question.

More directly. What effect do you want to have by cancelling the trademark?

The fact you’re using a much less forceful form of censorship doesn’t mean you aren’t infringing their speech.

@anon50609448

Well, God Delusion isn’t a trademark. It’s copyright, and they are completely different things legally.

The title might be trademarked, certainly a lot of books use trademark to protect their promotional tie-ins.

@anon50609448

If we had no copyright or trademark laws whatsoever that would not affect the right to free speech.

True, but if we favour specific speech with trademark or copyright that does affect the right to free speech.

@anon50609448

I think the people who made the case did so in the hopes that it would make continuing to use the name unpalatable to a business whose goal is to make money. Making it undesirable for them to continue to use the name - because of their own motives - is not the same as interfering with their ability to use it

Funny, when I read “it would make continuing to use the name unpalatable to a business whose goal is to make money” I think that’s pretty much identical to “interfering with their ability to use it”. Imagine Bush cancelled the trademark for the Daily Show to punish them for making fun of him? Sure there’s no offensive title argument, but if you don’t think that’s a free speech issue then what’s the restriction?

Also “The God Delusion” is an insult towards the religious beliefs of Christians, it’s not a slur like Redskins but many Christians would find it deeply insulting and they could claim it offensive. So I see both your and Nonentity’s positions supporting the right of the government to cancel that trademark or copyright (since I don’t think your position really differentiates).

@anon50609448

The US government won’t pass a law preventing me from using racial slurs, but it also won’t pass a law prevent my boss from firing me for using racial slurs to our customers.

Well yeah, your boss does get to interfere with your freedom of speech within the scope of your employment.

Your boss can however be banned from firing you due to your religious beliefs, that’s a restriction on their rights designed to protect your rights. But I don’t think that’s relevant to the discussion.

[Nonentity]

@aluchko

You dodged the question.

No, I did not. I clarified that you were making two false assumptions: that this would “inhibit their ability to use the name Redskins”, and that it would “inhibit their freedom of speech”.

@aluchko

More directly. What effect do you want to have by cancelling the trademark?

You quoted my answer to this in your post. Please read it this time.

@Nonentity

They could continue using it if they really wanted to, but other people would be more able to use it in ways they wouldn’t like.

@aluchko

The fact you’re using a much less forceful form of censorship doesn’t mean you aren’t infringing their speech.

Oh, for crying out loud. Not having a trademark on a particular bit of speech is NOT censorship. In any form. It just isn’t. If you’re going to use the words, at least use them correctly.

If it were, then most of the American population would be constantly under censorship because they don’t have any trademarks.

@aluchko

Funny, when I read “it would make continuing to use the name unpalatable to a business whose goal is to make money” I think that’s pretty much identical to “interfering with their ability to use it”.

Making money is an entirely separate thing from free speech, and making speech unpalatable to use for the goal of making money in no way interferes with your ability to use it as speech.

[anon50609448]

@aluchko

Funny, when I read “it would make continuing to use the name unpalatable to a business whose goal is to make money” I think that’s pretty much identical to “interfering with their ability to use it”.

It absolutely is not. Can they still use it? Yes they can.

It gives them a decision to make about profit vs. expression, exactly the same decision I make when I decide about employment versus hurling slurs at customers.

@aluchko

Imagine Bush cancelled the trademark for the Daily Show to punish them for making fun of him?

What would be wrong with that is that the government would be acting outside the law. Individuals can do what they want unless a law says they can’t, governments can’t do anything unless a law says they can. If it was written into trademark law that the government could cancel any trademark at any time for any reason I think we’d all look at that and say, “Wow, that’s a really bad public policy.” We would say the same thing if the fee to register a trademark was $1M, and we might say the same thing if they just did away with trademarks altogether. None of that would violate the consitution.

Once again, I want to separate two issues. 1) Whether your rights are being infringed upon; and 2) Whether disallowing offensive trademarks is a good or a bad idea. You have absolutely no right to trademark anything, the government is not required to have any law allowing trademarks or to have that law conform to any standard. If trademark law clearly discriminated against a category of people (based on race, gender, sexuality, etc) then there is a very good chance the courts would say, “Hey, all people are people, you can’t do that.” But “People who use racial slurs” is not a protected category.

Whether or not it is a good idea, I really don’t know. I think it could result in some unfairness in the system and some bizarre results.

Also, you seem to think that somehow recognition that a trademark on “God Delusion” could be cancelled would make me change my mind about this. Richard Dawkins doesn’t have any more right to profit off of that phrase than the Redskins have to profit off of their team name. No one has a right to profit off of anything, the government is not compelled to furnish me with laws that support my ability to profit off of things I say by restricting the free speech of others because that is exactly what trademark law is. Absolute freedom of expression would mean trademarks could not exist at all.

[aluchko]

@Nonentity

No, I did not. I clarified that you were making two false assumptions: that this would “inhibit their ability to use the name Redskins”, and that it would “inhibit their freedom of speech”.

@Nonentity

They could continue using it if they really wanted to, but other people would be more able to use it in ways they wouldn’t like.

Ie, they could use it to make unauthorized Redskins products and harm the franchise financially, this inhibits their ability to use the name and thus their speech.

@Nonentity

Oh, for crying out loud. Not having a trademark on a particular bit of speech is NOT censorship. In any form. It just isn’t. If you’re going to use the words, at least use them correctly.

If it were, then most of the American population would be constantly under censorship because they don’t have any trademarks.

That doesn’t make sense. The issue isn’t that trademarks are essential for speech, it’s that removing the trademark is a punishment being levied for a specific kind of speech.

@Nonentity

Making money is an entirely separate thing from free speech, and making speech unpalatable to use for the goal of making money in no way interferes with your ability to use it as speech.

I strongly disagree. By this statement President Trump with a Tea Party majority would be able to pass a law saying the NY Times couldn’t charge money for papers (or get a copyright) because of their liberal leanings.

Yes it’s an extreme example but the 1st amendment doesn’t specify that only particularly egregious infringements are banned.

@anon50609448

It absolutely is not. Can they still use it? Yes they can.

It gives them a decision to make about profit vs. expression, exactly the same decision I make when I decide about employment versus hurling slurs at customers.

Your employer is allowed to restrict your freedom of speech within the scope of your employment. The government is not.

@anon50609448

What would be wrong with that is that the government would be acting outside the law. Individuals can do what they want unless a law says they can’t, governments can’t do anything unless a law says they can. If it was written into trademark law that the government could cancel any trademark at any time for any reason I think we’d all look at that and say, “Wow, that’s a really bad public policy.”

No, we’d say “that’s still illegal because it violates the 1st amendment and that law will be promptly overturned by the courts”.

Forget the fact that trademark is involved with speech at all. The removal of the trademark is a punishment that is being levied because people oppose the speech. Punishing someone for a particular viewpoint is an infringement of freedom of speech.

Perhaps you don’t think it should be and inflicting that punishment should be allowed, that’s fine, but that’s not the way it is. The purpose of a constitution isn’t to stop you from doing things you weren’t going to do, it’s to stop you from doing things you do want to do but probably shouldn’t because they risk other consequences.

[Nonentity]

@aluchko

Ie, they could use it to make unauthorized Redskins products and harm the franchise financially, this inhibits their ability to use the name

No, it doesn’t inhibit their ability to use the name. It merely does not inhibit other people from using it. There’s a universe of difference there.

@aluchko

That doesn’t make sense. The issue isn’t that trademarks are essential for speech, it’s that removing the trademark is a punishment being levied for a specific kind of speech.

If having the trademark is not essential for speech, then removing a trademark is not preventing speech.

@aluchko

I strongly disagree. By this statement President Trump with a Tea Party majority would be able to pass a law saying the NY Times couldn’t charge money for papers (or get a copyright) because of their liberal leanings.

First of all, copyright is entirely different from trademark. Again. Completely different set of rights involved, completely different sets of rules, etc.

Second, how about we really go all the way here. If trademarks were abolished entirely, would you say that every citizen who previously had a trademark was thereby being inhibited in their freedom of speech?

Having a trademark does not improve your freedom of speech. It grants you a limited ability to prevent other people from using their own freedom of speech. Censoring everyone else in regards to a specific form of speech improves your ability to make money from that speech, it does not improve your ability to use that speech.

[anon61221983]

ass ass in…

[aluchko]

@Nonentity

“That doesn’t make sense. The issue isn’t that trademarks are essential for speech, it’s that removing the trademark is a punishment being levied for a specific kind of speech.”

If having the trademark is not essential for speech, then removing a trademark is not preventing speech.

Your reply missed my point entirely. Ignore the effects of the trademark on free speech, focus in the idea that removing the trademark was a punishment inflicted for a specific kind of speech. Just like if they had inflicted a daily fine against the franchise.

[anon50609448]

@aluchko

Your employer is allowed to restrict your freedom of speech within the scope of your employment. The government is not.

The government is not restricting their freedom of speech. It isn’t. Explain how it is.

@aluchko

The removal of the trademark is a punishment that is being levied because people oppose the speech. Punishing someone for a particular viewpoint is an infringement of freedom of speech.

Removal of a trademark is not a punishment.

[Nonentity]

@aluchko

Ignore the effects of the trademark on free speech, focus in the idea that removing the trademark was a punishment inflicted for a specific kind of speech.

If the trademark doesn’t follow the rules set out in the law that enables trademarks to exist, then they can be denied the benefits of the trademark. That’s not a punishment, that’s the rules. They aren’t losing it because of a specific kind of speech - they’re losing it because the trademark they had protection for was found to violate the rules for trademarks.

And, they’re still just as free to use that specific kind of speech as they were before. They just lose the additional privilege to tell other people not to use it in commerce.

[celesteh]

What I learned from this thread: some people will intentionally confuse trademark and copyright to defend the Washington Racists because they love white supremacy so much. Or they might be really dim. Hard to tell. Equally a waste of time to argue with.

[aluchko]

@anon50609448

“Your employer is allowed to restrict your freedom of speech within the scope of your employment. The government is not.”

The government is not restricting their freedom of speech. It isn’t. Explain how it is.

So if they fined the Redskins for having an offensive name, mascot, or an offensive cheer, would you agree that was restricting their freedom of speech?

I’m not saying this is equivalent, I just want to understand what actions you’d consider a restriction on their freedom of speech.

@Nonentity

If the trademark doesn’t follow the rules set out in the law that enables trademarks to exist, then they can be denied the benefits of the trademark. That’s not a punishment, that’s the rules. They aren’t losing it because of a specific kind of speech - they’re losing it because the trademark they had protection for was found to violate the rules for trademarks.

I think there’s two questions.

1. Should the government be able to deny trademarks that it deems offensive?

2. If 1 is true does the Redskins trademark fit the standard of things that get denied?

I’m dubious of #1 but I think you could do it if applied fairly and consistently. However #2 is where I’m very skeptical. Assuming #1 and someone applying for a trademark involving n****r or k**e (the Jewish one since) I could see definite grounds for cancellation since those terms used by an outsider are almost exclusively used with the objective of causing serious offense (or signifying dedicated racism). But ‘Redskins’ is often a term of inadvertent offence, ie it is offensive and racist but the people using the term may not realize they’re being offensive nor understand why it is offensive.

The belief that it is offensive then becomes a question of someone’s views, which means that to ban it you’re now in the position of either endorsing one group’s viewpoint over another (which is unconstitutional) or banning any trademark that some group finds offensive (which is clearly not the case).

@Nonentity

And, they’re still just as free to use that specific kind of speech as they were before. They just lose the additional privilege to tell other people not to use it in commerce.

But if you favour some speech by giving it special privileges then the unfavoured speech bears a comparative disadvantage, I think that counts as infringement.

@celesteh

What I learned from this thread: some people will intentionally confuse trademark and copyright to defend the Washington Racists because they love white supremacy so much. Or they might be really dim. Hard to tell. Equally a waste of time to argue with.

I was very close to ignoring this because it looks a hell of a lot like a pure trolley.

But I’ve been clear multiple times I think the name is offensive and want them to change it. I just also strongly believe in freedom of speech and the fair application of law, and by my interpretation the trademark cancellation violates both.

You can disagree with me but please don’t slander me.

[Nonentity]

@aluchko

But if you favour some speech by giving it special privileges then the unfavoured speech bears a comparative disadvantage, I think that counts as infringement

So it is your opinion that everyone in the entire US who doesn’t have a trademark currently has their freedom of speech infringed?

You don’t get to have it both ways. If not having a trademark infringes someone’s freedom of speech, then that counts for everyone.

What I have been saying is that the existance of a trademark infringes the freedom of speech of those who don’t have that trademark (possibly with justification, that’s a completely different topic). Cancelling a trademark does not infringe anyone’s speech, it returns things to the default of rights for everyone.

You keep confusing “it’s harder to make money with this speech” with “my freedom of speech is infringed”. Once again, these are entirely different things.

[aluchko]

@Nonentity

So it is your opinion that everyone in the entire US who doesn’t have a trademark currently has their freedom of speech infringed?

No.

@Nonentity

What I have been saying is that the existance of a trademark infringes the freedom of speech of those who don’t have that trademark (possibly with justification, that’s a completely different topic).

Agreed.

@Nonentity

Cancelling a trademark does not infringe anyone’s speech, it returns things to the default of rights for everyone.

If the cancellation was done for some reason other than the viewpoint then it does not infringe, but if it’s selectively applied then it does.

I’m going to go back to the God Delusion and copyright example (yes copyright is different but it’s a very clear example that the argument you just laid out applies to just as well).

Copyright restricts speech, removing the copyright gives other people back their default rights, and the primary harm from removing the copyright is monetary.

So if the US government cancelled the copyright of all atheist books, thus making them unprofitable to write and publish, do you think it would be unconstitutional or not?

If not then how do you think it differs from the example we were just discussion? Clearly the example is far broader scope and a far more severe response and you might consider that difference sufficient, but I think the examples are fundamentally the same concept.

[anon50609448]

@aluchko

So if they fined the Redskins for having an offensive name, mascot, or an offensive cheer, would you agree that was restricting their freedom of speech?

Well, under the current interpretation of the US constitution that would might be unconstitutional, yes. Fining someone or putting them in prison are ways that governments punish people, free speech absolutism says that it’s okay to say pretty nearly anything, and for some crazy reason US judges think corporations are human beings that have human rights. It would depend on the actual law they were being charged under said, though.

@aluchko

So if the US government cancelled the copyright of all atheist books, thus making them unprofitable to write and publish, do you think it would be unconstitutional or not?

It differs pretty substantially. First of all, that would be targeting a religion. Discriminating against people based on their race, sex, religion, sexuality or any of a number of other grounds has problems of its own. Suppose you passed a law that said atheists can’t use certain water fountains. We all know that wouldn’t fly, even though there is no right to use water fountains. So the problem with the law you mention isn’t the free speech issue, it’s the discriminating against people based on their religion issue.

You can’t pass laws to discriminate against people on a variety of grounds. You can pass a law that discriminate against people for being certain kinds assholes, we have a huge number of those.

Also, I think copyright and trademark are relevantly different. If I build a car for myself and the government seizes it, that’s taking my property and would be put under a different level of scrutiny than if they told me I couldn’t drive it on the road because it’s doesn’t comply with regulations governing cars. I think taking away copyright is more analogous to the former while trademarks are more analogous to the latter. Basically, we treat writing a book the same as building a physical object, it is ours. Trademarks have to be registered and could be denied based on a number of grounds. You have to pay a filing fee to get a trademark. If refusing to register a trademark was infringing on free speech then the filing fee would be unconstitutional.

[Nonentity]

@aluchko

yes copyright is different but it’s a very clear example that the argument you just laid out applies to just as well

Trademarks, by themselves, are not speech. They are a set of additional privileges applied to some speech, under specific rules, and only in regards to commerce in specified categories.

Which explains why you keep wanting to argue this under copyrights, because that lets you pretend that it’s all just a matter of speech in general. Even though the rules of copyright are obviously completely different. Sorry, I’m not going to play along with that.

[Nonentity]

@aluchko

I’m not claiming that trademark is a form of free speech, but rather that the government denying trademark based on viewpoint is an infringement of the speech that caused the trademark to be denied.

How about if the government’s denying trademark based on the rights of those the extra privileges would be used against?