Peter d'Errico: Challenge to racist trademarks shows potential

Free speech protection does not solve the problems facing the team owner, as demonstrated by a different effort to persuade the U.S. Trademark office to revoke the trademarked status of "Washington Redskins." The group behind the effort cites the U.S. law that prohibits trademarks that involve disparaging, scandalous, contemptuous or disreputable names. Revocation would undermine the team's marketing program for sports apparel and memorabilia.

The trademark challenge shows serious potential. On March 17, 2014, the Patent and Trademark Office officially refused to register the trademark "Washington Redskin Potatoes," on the ground that "the applied-for mark includes matter which may disparage or bring into contempt or disrepute persons, institutions, beliefs, or national symbols." That denial has implications for revoking trademark protection for the team name.

Denial of a trademark is not the same as prohibiting a name, and it does not eliminate the free speech issue; but it does damage the commercial potential for sales of a product. It removes the easiest method of protecting a brand against competition. In other words, denial of a trademark affects a company's bottom line. Thus, the proponents of trademark revocation are deploying an economic as well as a legal approach.