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There’s new hysteria surrounding the cancellation of the Washington Redskins trademark registration, and it goes like this: The government’s decision was much ado about nothing.
After reading our fact-check about the Obama administration’s (lack of) direct involvement in the decision, a reader asked us to look into a claim from a conservative blog that the U.S. Patent and Trademark Office canceled the team’s trademark without public outcry to do so.
One would think that the public outcry against such an "offensive, inflammatory" name must’ve been huge to gain the attention of a senator. People must have been writing tons of letters complaining about how racist the name was in order to get President Obama to weigh in on the issue.
The number of complaints the U.S. Patent and Trademark Office received about the Redskins name was astounding, but not because there were so many. In fact, it’s quite the opposite. The agency received zero complaints about the team’s name. Zero.
The post by the Conservative Tribune deems this evidence of a left-wing scheme to win voters and open "the door for repealing the First Amendment."
We checked it out and did not exactly find a scandal.
Most notably, the post fails to mention why the U.S. Patent and Trademark Office considered canceling the trademarks in the first place: People complained about it.
On June 18, 2014, a panel of three administrative law judges known as the Trademark Trial and Appeal Board canceled the team’s trademark registrations on the grounds that it disparages American Indians. As expected, the team is appealing the decision, just as it did when it challenged the same panel’s decision in 1999 in a related complaint and won. (The football team can keep the rights to its trademark as it goes through the appeals process.)
Two weeks after the decision, the Washington Times ran a story about how the U.S. Patent and Trademark Office could not produce any records that showed members of the public wrote in to express their opinions about the team’s name before the most recent ruling.
The newspaper’s public records request for correspondence about the logo turned up 13 pages of records, half of which came from a Texas man who wrote a "meandering" letter by hand after the ruling. The other pages came from a person congratulating the appeals board and from staffers seeking background information about the case for Delegate Eleanor Holmes Norton, the nonvoting member of Congress from Washington, D.C. (and an opponent of the team’s name).
Is it the "bombshell" as described by the Conservative Tribune website? Not really.
The U.S. Patent and Trademark Office does not solicit public comment like other government agencies as they consider new rules and regulations. It’s not built that way.
Its process prescribed by the U.S. Code works similar to a legal trial, in which only the parties involved can submit evidence. There could be one letter or 1,000, but it’s not going to make a difference in whether a trademark is granted or canceled. Put another way, it’s not part of the process in the way that the Environmental Protection Agency or Federal Trade Commission reviews public input before considering a new rule or regulation.
In this case, the U.S. Patent and Trademark Office acts more like the Supreme Court, in that the court wouldn’t solicit or consider your opinion of the health care law before it issued a ruling.
"The presence or absence of letters of complaint in a case like this really does not have any bearing on whether or not a trademark is going to be canceled," said Elizabeth Rowe, University of Florida College of Law professor and director of the Program in Intellectual Property Law. "If you want a trademark to be canceled, you have to do what the plaintiffs did here."
The Redskins case deals with existing trademark registrations, which require investment on the part of people who seek to have the trademark canceled under federal code. In this case, five young people with American Indian heritage petitioned the Patent and Trademark Office in 2006 to cancel the registrations, arguing that it is disparaging.
There is a brief period to allow for opposition to pending trademark applications, but a simple letter of complaint would not do much there either, Rowe said. That window is usually used by rival companies to assert whether a logo is too close to their own and confusing for consumers, and objections involve filing an objection, evidence to support it and having a hearing.
"It’s really neither here nor there to say that they were letters of complaint or how many were there," Rowe said.
The Washington Times article that called the missing public comment into question even echoes these points, quoting the plaintiffs’ attorney and a Georgetown University professor as saying public correspondence isn’t built into the process for hearing individual cases.
For what it's worth, there are petitions at websites like Change.org and MoveOn.org in favor of changing the name or ditching it, and some have thousands of signatures. But the aim is to rally people about the issue and exert pressure on team ownership, not to influence the decisions of administrative law judges.
Conservative blog posts smell a scandal in the cancellation of the Washington Redskins trademark, pointing out that the U.S. Patent and Trademark Office "received zero complaints" about it before an administrative law court ruled in June.
The case was opened because someone complained -- so that assertion is wrong on its face.
But even that aside, the post is misleading in suggesting that public comments are part of the U.S. Patent and Trademark Office process when they are not.
When people have a problem with patents and trademarks and want them removed, they file formal complaints, prove their standing in the case, pay a fee, and provide evidence to support their case.
In other words, they do exactly what the five plaintiffs in this case did here.
We rate the claim False.
Conservative Tribune, "BOMBSHELL: Patent Office Received ZERO Complaints About Redskins Name," July 1, 2014
The Washington Times, "Patent Office didn’t receive a single complaint before stripping Redskins trademark," July 1, 2014
Interview with Patrick Ross, U.S. Patent and Trademark Office spokesman, July 3, 2014
Interview with Elizabeth Rowe, University of Florida College of Law professor of intellectual property law, July 7, 2014
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