Bradley M. Kuhn

Bradley M. Kuhn at

Pam, I just don't agree with you about this issue of hacking the law. Trademark law was designed to put political pressure on a racist instutition; it was designed to avoid consumer confusion about names and brands.

Therefore, the use here is hack like copyleft.

The statute has several bases for refusing registration that aren't related to confusion and protect sensibilities, in particular, where the mark "consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage ... persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." I can't think of any way these are related to confusion, although there are a lot of other exclusions where I could make a case (e.g., flag, coat of arms, geographical indicator for wine, name of a deceased President while his widow is still alive). I don't know why they're there, although the Act of 1905 also had a prohibition on registration of immoral and scandalous matter (but the Act of 1881 appears not to have it). One treatise from 1917 I have says "public policy demands such restriction" and a 1906 case talks about marks that are "contrary to morals and to public order." So not a hack, a long history of imposing a moral standard.

I get your point, your saying that the attack on the registration was an indirect way to force a social change. But here the "hack" is consistent with public opinion, not altering it. And it's a pretty lousy way to do it to; as I mentioned it's been going on for over 20 years and still has a few more to go. The Redskins will change the name first.

I've been engaged in discussion about whether these marks are enforceable at common law because they are not confusion-based. I thought clearly they must be, but others have convinced me I could be wrong. Mark McKenna takes a thoughtful view they are enforceable on a recent Patently-O post. Personally I think that a decision holding that they are not enforceable is a content-based restriction on speech, but I'm not a First Amendment expert. So to the extent that this means that the trademarks aren't even enforceable at common law I'd be getting closer to "hack," although I'd probably characterize it more as a excellent use of leverage.

Pamela Chestek at 2014-06-20T12:49:28Z