ESPN Washington Football Team Reporter John Keim writes about the Redskins trademark dispute:
Stay out, government: I agree with this take from The Washington Post’s Sally Jenkins. If the Redskins are going to change their name, let it come from societal pressure and not from congressional action. She made it clear that she’s in favor of a name change, but also wrote: “You don’t really want government agencies to become the arbiter of acceptable words and images. You really don’t. The main reason you don’t is because, like it or not, what’s offensive is subjective.” Totally agree. This isn’t as much about them needing to take care of other issues as it is about that slippery slope. I'm not a fan of slippery slopes. [Emphasis supplied.]This is in the best uninformed Tea Party tradition (though Kleim clearly is not a Tea Partier, he supports a name change) - a sort of "Keep The Government's Hands Off My Medicare." Did the government go out of its way to get involved in the controversy? Of course not.
It was the Washington football team, now owned by Dan Snyder, that decided to avail itself of the protections offered by the federal trademark law for registered marks. If you want the government to "stay out of it," then your beef is with the Washington football team, which decided to put the government in it, by registering the mark. The other parties who put "the government in it" were the petitioners for cancellation, availing themselves of the rights granted by the federal trademark laws to seek cancellation of the mark, citing to the prohibition in the law against the registration of disparaging marks.
Moreover, even if the Washington football team did not register the mark, and instead sought to establish common law trademark rights, it would need the government to declare and enforce such rights. Namely, the courts (either federal or state.)
Here's my point - Would John Galt ever register a trademark? Would he ever sue in court claiming trademark infringement? The answer is of course he would. But he'd be screaming for the government to "stay out of it" the whole time.
Finally, as an amusing aside, I had this exchange with Kleim on twitter. This was the capper from Kleim:
love hearing stuff from people who work for one-sided publications (on either side).Yes, facts do have a liberal bias.
DISCLOSURE: I practice trademark law so I have a vested interest in the government "staying in" the trademark law business.