How the Washington Redskins flap could infiltrate college sports

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"About time," was the reaction of most pundits to this week's news that the Washington Redskins name had been deemed disparaging to Native Americans.

About time that a team name that was racist by definition was punished financially.

About time that owner Dan Snyder, who loudly broadcast that the name would "never change" received his first pushback.

But the U.S. Patent and Trademark Office's decision to repeal six Redskins trademarks based on their disparaging value, while nobly-minded, could have devastating results.

And the effects could impact college sports just as easily. The San Diego State Aztecs. The Hawaii Warriors. The Florida State Seminoles.

These are all examples of the many universities which use Native American names as a mascot for their sports teams. In some cases, the Native American roots have been taken away, for fear of reprisal.

The University of Illinois, which used to be the Fighting Illini, removed all Native American references and game-day traditions in 2007 after receiving flak for perpetuating stereotypes with its mascot, Chief Illiniwek.

Though none of those names are as immediately divisive as the term "Redskin."

Here are the facts of the case: In the United States, a trademark must be renewed every 10 years or so. The Redskins submitted six trademarks for renewal, in a process that is pretty much cursory.

Trademarks as public as this, especially ones that have been around for 80 years, rarely get repealed. The approval process is a matter of formality. It's important to remember that trademark registration simply allows a company or organization to stop other groups from using that trademark in their dealings. This doesn't stop the Redskins from using the logo or the name.

Also, some have theorized that they still maintain their trademark rights under U.S. law, due to their continued use of it.

But going back to the case: After five Native Americans requested that the trademark be repealed, due to its potentially racist connotations, the U.S. Patent and Trademark Office took a longer look at it, setting up the stage for their final decision.

Could colleges and universities see similar repeals? Sure. And that is troubling, despite the apparent vulgarity of the Redskin name.

It's a problem because it leaves the decision-making on whether to deem something racist, or "disparaging" to a group of people, to a very small, very limited government office. It gives disproportionate say to that small office, allowing it to adversely affect a company's business practices on an arbitrary judgment.

Section (2)(a) of the Trademark Act is the pivotal piece here.

In it, it gives the office the right to refuse a trademark if it is interpreted as "immoral" or "scandalous." As Marc J. Randazza, a Las Vegas First Amendment lawyer writes in a CNN opinion, "In other words, a civil servant executing the registration is allowed to be the arbiter of morality. Do we really want that?"

In the United States, such morality clauses have been eradicated from most federal laws and guidelines. 

But this seems to be a holdover of the good old days when the concern of scandalization and moral deterioration outweighed concerns of freedom of speech.

Which goes back to the simple question: who decides what is immoral?

Who decides if the Central Michigan Chippewas are disparaging to Chippewa indians?

Who decides if the tomahawk chop of the Florida State Seminoles is scandalous?

At least for trademark purposes, it's a single government office.

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