Viewpoint neutrality and the Lanham Act

[Lynne Henderson]

Viewpoint neutrality and the Lanham ActFRe: Washington Redskins/Lanham
Act/"content/meaning" broader issues:  a really interesting analysis of
cultural symbols, trademark, copyright and stereotype, I recommend highly
Prof. .  Roesemary Coombe's *The Cultural Life of Intellectual Properties:
Authorship, Appropriation and the Law* (Duke 1998). A bit pomo, but a superb
legal/anthropological examination as well.  Coombe teaches at U Toronto, but
has a JSD from Stanford and knows US law quite well.
Lynne

Lynne Henderosn
lhenders at ix.netcom.com

  -----Original Message-----
  From: Discussion list for con law professors
[mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Volokh, Eugene
  Sent: Wednesday, October 04, 2000 4:28 PM
  To: CONLAWPROF at listserv.ucla.edu
  Subject: Viewpoint neutrality and the Lanham Act


          Someone asked me off-list whether the Lanham Act's
disqualification of any mark that "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" is in fact viewpoint-based.

          This raises the point, which had been discussed on the list before
in other contexts, that "viewpoint-neutrality" isn't terribly well-defined.
On the one hand, the Lanham Act rule clearly disfavors some viewpoints --
viewpoints that disparage persons, institutions, beliefs, or national
symbols -- while favoring the exactly opposite viewpoints -- viewpoints that
praise those persons, institutions, beliefs, or national symbols.  On the
other hand, the range of disfavored viewpoints is very broad, covering
people on most points on the political spectrum.  I'd love to hear what
people think on this score.

          On the other hand, I'm pretty certain that the Act is *not* being
applied the way it's written.  Can it really be the case that it's
impossible to register a trademark -- say, the title of a movie or a book --
that "may disparage . . . [a] belief[]"?  How about a book called "Nazism:
The Ultimate Evil"?  A symbol that has (1) a cross, (2) a swastika, (3) a
hammer and sickle in a red circle with a slash through it?  The name of a
gay activist group, "Stop the Church"?  A movie called "Reagan the Killer"
(or, if you prefer, "Ted Kennedy the Killer")?

          My guess is that, as applied to the Redskins, the Act is clearly
viewpoint-based; the decision is based on the fact that the trademark was
seen by the PTO as expressing an *unfairly* negative view of a group of
people.  Marks that are seen as expressing a negative view of a person,
belief, institution, or national symbol would still be registered, so long
as the PTO doesn't think that this view is somehow unfair, racist, or
otherwise especially bad.  And that's definitely a viewpoint-based
criterion.

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