REDSKINS

The US trademark authorities recently issued a ruling that made the headlines – the trademark registrations for Redskins belonging to the Washington Redskins football team must be cancelled. Why? Because they contain ‘matter that is likely to disparage’. It’s a matter that’s dragged on for some 20 years, and there’s no guarantee that it’s over because the team still has a right of appeal. Even if an appeal is filed and it does go against the Washington Redskins, the team will still be able to use the name – the effect of the ruling is simply to deprive it of trademark registrations.

The ruling does contain some interesting stuff. The tribunal found that some 30% of Native Americans found the term offensive, and that this was a significant proportion. It also held that a defence of acquiescence or delay in bringing proceedings would not be appropriate in a matter like this because there is an overwhelming public interest involved here, not the just the right of a single complainant.

All trademark systems have provisions disallowing registration of marks that are immoral or offensive. Standards of morality do, however, vary from country to country, and over time. The UK authorities have generally been quite prudish, refusing the marks 4 Poofs & a Piano and Jesus, on the basis that they would offend clearly identifiable classes of persons – they also refused Tiny Penis, although it’s unlikely that the people forming that class were overly keen to identify themselves. They refused the mark Fook, a decision that takes account of the fact that Britain is a land of many dialects and accents. The German authorities, however, had no problem with the mark Ficken (which means what you think it means), on the basis that ‘today the word is barely considered offensive or sexually provocative.’

A few years back the European trademark authorities refused an application to register Paki, a derogatory term in the UK for people of Pakistani (and other Asian) origin. This despite evidence that quite a number of people who form part of the identifiable class have no problem with it, and sometimes even use it themselves.

As for South Africa, the trademarks Act talks of refusing protection to marks if the use of those marks would be ‘contrary to law’, ‘contra bonos mores’ (contrary to good morals), or ‘likely to give offence to any class of persons’. Our authorities have been fairly relaxed on the issue of morality, allowing registration of marks like Dog’s Bum and Fat Bastard. But, given our history, it’s highly unlikely that anything that could be regarded as racially sensitive would be allowed.

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