A federal court has ruled that trademarks can’t disparage religious or ethnic groups.
The case has major implications for the Washington Redskins franchise, which has drawn the ire of the perpetually outraged particularly of late, but there are also interesting implications for the Fighting Sioux nickname fight here in North Dakota.
The NCAA has forced the University of North Dakota to retire the logo and nickname, and campus activists (including Democrat legislative candidate and student Senate member Kyle Thorson) want it to be against school policy to even express support for the logo/nickname (they’ve scheduled a march inspired by the “Siouxper Drunk” tshirt controversy to push for this).
But part of the NCAA’s deal with UND on the nickname states that UND most hold onto the trademark, lest some enterprising entrepreneur start making unofficial Fighting Sioux merchandise. That’s already problematic, because under US law in order to maintain a trademark you have to actually use the trademark. Which means that in order for UND to comply with the NCAA’s mandate that they maintain the rights to the Fighting Sioux logo and nickname they’re going to have to use it once in a while.
How’s that for irony?
But now, if this federal court ruling stands, the University of North Dakota may not be able to maintain the trademark at all, unless the university wants to argue that the logo/nickname aren’t disparaging to Native Americans.
Most North Dakotans, and a lot of the actual Sioux people in North Dakota (including the Spirit Lake Sioux tribe which has been outspoken in support of the logo/nickname) don’t believe it’s disparaging, but it would be ironic if the university had to make that argument in order to maintain the trademark so that they logo/nickname can’t be used unofficially.
Though, really, the federal court ruling is pretty ridiculous. Who gets to decide what is offensive and what isn’t? Are we now going to have a heckler’s veto for trademarks, whereby somebody can deny trademark protection to anything simply by saying they’re offended?
An interesting case in point is the Asian-American band The Slants. The band members have been trying to get protection for their brand for years now, but the federal government is refusing noting that “slants” is a racial slur for Asian-Americans.
The feds are right. “Slants” is a racial slur, but the fact that the band consists of actual Asian-Americans looking to own the term is apparently lost on them.
As I noted yesterday during a debate over the Siouxper Drunk fiasco, it seems a growing number of Americans think they have the right not to be offended, and that it’s the government’s job to keep offensive things from their eyes. But those feelings aren’t consistent with liberty. One of the costs of living in a free society is tolerating speech that you may find offensive.