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The U.S. Patent and Trademark Office canceled the trademark registration of the Washington Redskins June 18 because it disparages American Indians, marking the latest but not the last development in a decades-old battle over the NFL team’s name.
Should supporters of the team’s name blame Obama?
That’s who conservative radio pundit Rush Limbaugh singled out on his popular radio show. Limbaugh says President Barack Obama audaciously, whimsically canceled the trademark in a show of political power and out of hyperpolitical correctness.
"This is not the Patent and Trademark Office. This is Barack Obama," Limbaugh said, according to a transcript of his June 18 show. "... All this stuff is coming out of the executive branch. All of this, well, tyranny. It's all coming from the executive branch, and Obama owns the executive branch."
At best, that’s an unproven conspiracy theory. We’ll walk you through it.
Background about the ruling
The ruling does not mean the team has to change its name. The team will keep its trademark registrations throughout the appeals process. If the ruling is upheld and the team loses, the team can still use the name "Redskins" but it could lose the legal rights of having a trademark, such as the federal government blocking counterfeit goods with its logo. There's also a possibility it could retain its "common law" rights without the federal trademark based on how long it has been used.
Team attorneys played down the significance of the June 18 decision by highlighting the same trademark board’s 1999 ruling that also "canceled" the team’s name after an earlier challenge. The team won on appeal.
Meanwhile, the trademark agency has not allowed trademarks with the term "Redskins" about a dozen times since 1992, when the earlier case was filed, because it "may" disparage American Indians, the Associated Press reported.
The Trademark Trial and Appeal Board is an independent administrative tribunal -- an identity it stressed in media materials announcing the decision. It operates within the U.S. Patent and Trademark Office, which is a division of the Department of Commerce.
The Commerce secretary, U.S. Patent and Trademark Office director and deputy director are presidential appointees that serve at his pleasure.
From there, the Commerce secretary chooses the board’s 21 judges with input from the Patent and Trademark Office director.
The chief judge, currently Judge Gerard F. Rogers, picks judges to preside over specific cases. In the Redskins matter, Rogers picked veteran judges because the case was viewed as setting a binding precedent for the board in similar cases, said Patrick Ross, Patent and Trademark Office deputy chief communications officer.
The judges do not get terms or lifetime appointments. But they can’t be fired willy-nilly. They work like other civil service employees, not political appointees, and must be fired for cause. Like umbrella agencies for thousands of administrative judges around the country, the director and deputy director cannot tell the judges how to rule in a certain case.
So, as in all things in Washington, politics plays some role. But the administrative law system is set up to try to remove politics as much as possible by creating barriers between the work of the judges and the politics of the bosses serving layers above them.
Obama did wade into the debate last year, saying he would "think about changing" the team’s name if he were the owner in an October Associated Press interview
"I don't know whether our attachment to a particular name should override the real legitimate concerns that people have about these things," Obama said.
About the judges and their role
Obama’s comments, plus the letter to team owner Dan Snyder signed by 50 U.S. Democratic senators, did draw politics into the fracas. But did that pressure interfere with an otherwise impartial decision?
"There’s no evidence for that," said Elizabeth Rowe, University of Florida College of Law professor and director of the Program in Intellectual Property Law. "There is no room for that in the way the system is set up."
The office makes hundreds of decisions a year and operates independently of the White House, she said. The decisions are made based on specific rules from Congress and legal interpretations from various courts’ decisions and precedents in intellectual property cases.
And importantly, none of the three judges involved in the ruling were appointed while Obama was in office. All three took their seat during the terms of President George W. Bush.
Judge Karen Kuhlke was appointed May 1, 2005. Judge Peter Cataldo was appointed May 14, 2006. And Judge Marc Bergsman was appointed Nov. 13, 2006.
Bergsman dissented with Kuhlke and Cataldo in this case, arguing the trademark should not be canceled because the plaintiffs failed to show that a "substantial composite" of American Indians find the team’s name offensive and that its evidence was essentially a "database dump" that proved little.
Kuhlke and Cataldo, on the other hand, found the trademarks were disparaging to Native Americans at the time they were registered, and the five people who brought it forth had standing because they were members of Native American tribes.
As we noted earlier, judges in the same administrative court issued the same finding in 1999, before it was overturned on appeal.
Limbaugh said, the decision to cancel the trademark of the Washington Redskins "is not the Patent and Trademark Office. This is Barack Obama."
Limbaugh, for whom a spokesman could not be reached, does not prove that Obama usurped the administrative law judges’ hands in canceling the trademark. The court issued the same decision in 1999. This time, the two judges who found the trademarks disparaging were appointed in the Bush years. The judges do not serve at the pleasure of the president and have to be fired for cause.
We rate Limbaugh’s claim False.
U.S. Patent and Trademark Office, Blackhorse vs. Pro Football Inc., June 18, 2014
Interview with Patrick Ross, Patent and Trademark Office deputy chief communications officer, June 18-19, 2014
Interview with Eric Schultz, White House spokesman, June 18, 2014
Interview with Elizabeth Rowe, University of Florida College of Law professor of intellectual property law, June 18, 2014
Interview with Merrit Martin, Commerce Department press assistant, June 20, 2014
Association of Administrative Law Judges website, accessed June 19, 2014
Washington Redskins news release, June 18, 2014
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