Redskins, hammers and sickles, burning flags

[Lynne Henderson]

Prof. Rosemary Coombe of the University of Toronto has published several
articles in major law reviews and at least one book(Duke University
Press)   analyzing the appropriation of Indian names and arguing that
trademark/IP appropriation of these names is insupportable i nlaw.
Lynne
>-----Original Message-----  From:   Frank Cross
>[SMTP:crossf at MAIL.UTEXAS.EDU]  Sent:   Tuesday, March 12, 2002 3:14
>PM  To:     CONLAWPROF at listserv.ucla.edu  Subject:        Re: Sports
>Illustrated Survey etc
>
>While not a true trademark expert, I don't think First Amendment law
>has  applied to the grant of trademarks.  For example, I know of marks
>that were  denied on the grounds they were "immoral," which is a standard
>that falls  far short of obscenity.
>
>Nor do I think this is necessarily unwise.  While a trademark award may
>not  be "government speech," it does convey a sort of governmental
>imprimatur,  and the government has an interest in the content of that
>speech.  Nor does  a trademark denial prohibit speech in any way, it just
>limits the profits  that may be derived from such speech.
>
>
>
>Frank Cross  Herbert D. Kelleher Centennial Professor of Business Law  CBA
>5.202  University of Texas at Austin  Austin, TX 78712
>
>
>
>-----Original Message-----  From:   Malla Pollack
>[SMTP:L10MXP1 at WPO.CSO.NIU.EDU]  Sent:   Tuesday, March 12, 2002 3:01
>PM  To:     CONLAWPROF at listserv.ucla.edu  Subject:        Re: Sports
>Illustrated Survey etc
>
>As you originally framed the issue, I thought it questioned the propriety
>of the government acting to suppress speech.  But I suggest that we also
>consider the extent to which we want our government to affirmatively
>support something less than ideal.  This is similar to the First Amendment
>theoretical distinction between what the government can do as a speaker or
>funder of speech and what the government can do regarding third persons'
>speech.
>
>      As a trademark specialist (among other things), I am very aware of
> the extent the courts are willing to interfere with the "speech" of
> "alleged infringers."  Unlike the copyright act which purports to be
> content and view point neutral, the federal trademark statute (the Lanham
> Act) has a provision barring registration of several subsets of
> "offensive" marks.  . As far as I know, this has never been challenged as
> a violation of the First Amendment.
>
>      While I do not want to suggest exactly what standard to use in any
> case, I do think that we should consider the type of government action
> (or non-action) we are considering.  Hojo merely involved an action
> requesting that a mark's registration be canceled.  It did not involve an
> action requesting the government bar use of the mark.
>
>     Malla Pollack Northern Illinois Univ., College of Law DeKalb,
> Illinois 60115 815-753-1160; (fax) 815-753-9499 mallapollack at niu.ed
> <<mailto:mallapollack at niu.ed>mailto:mallapollack at niu.ed>u

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