4 ms·

That's not what's happening. The government was refusing to protect band names. They weren't saying "You can't have that name" they said, "That name is (potenti

That's not what's happening. The government was refusing to protect band names. They weren't saying "You can't have that name" they said, "That name is (potentially) offensive, which means we can't protect it."

keithpeter 9y ago
Does this mean that N.W.A. can fill in their acronym? (Friend of mine was a big fan back in the day. We had arguments about the name)
scottLobster 9y ago
TMK the burden of defense is on the trademark holder, not the government. The Trademark simply allows the defense. Given that the government protects many other forms of offensive speech in much the same way I find that rather hypocritical. Should authors be allowed to plagiarize if the content is "offensive"?
michaelt 9y ago
Would you say the same logic should be applied to all intellectual property, or are trademarks special? For example, should copyright laws depend on whether the thing being protected is offensive?
- icebraining 9y ago
  Careful, now; Pfhreak never said it should not be protected, only that the issue is not "the government regulating band names".
stvswn 9y ago
That was the government's argument and the Court's decision addressed it. Trademarks are not "government speech," they existed before the government -- both at the state level and in Common Law. Your trademark is protected because it is your trademark, not because the government decides to protect it.
gnicholas 9y ago
That is what the government was saying. But a band would have a harder time staying alive if they had no trademark. For example, the band said that you can't get signed by a label if you don't have a trademark on your name. Also, you can't prevent others from selling merchandise bearing your name. So while the government wasn't telling them that they couldn't use the name, the government's desired outcome would have made it more difficult for the band to survive. Same for the Redskins — and how much money do you think they make on merchandise?
- ergothus 9y ago
  > the government's desired outcome would have made it more difficult for the band to survive True. The govt makes lots of enforcement/promotion decisions, many decisions that make things harder for other people/companies (and easier for others). In fact, if a govt decisions has an absolutely equal impact on all parties, it's probably not a law that does anything. I'm not saying there isn't a free speech issue - just that saying "by refusing to limit free commerce the govt is infringing on free speech" show the two sides of the argument, both reasonable. The govt wasn't refusing to enforce with the intention of HARMING anyone directly (probably), it was trying to avoid taking enforcement action that WOULD harm people. Not specific people, but the protected class of race in this case. If you think otherwise, imagine the hypothetical where this occurs, realize some people think of it this way, and see that it means the disagreement is reasonable. I'm probably 60/40 in agreement with the court decision, but that 40% is because I can see the arguments on the other side as well. Your premise that the harm to the team is a problem doesn't hold up overall: It's a tough concept to accept that _intent_ makes a law valid/invalid. Make voting harder with the intent to combat voting fraud, the law is likely valid. Make voting harder with the intent of disenfranchising a particular group, the law is invalid. A cop shoots someone because they felt threatened, is legal. A cop shoots someone because they want to, it's not legal. Agree that it SHOULD be that way or not, this is pretty well established in the court system for quite a while. Which means a govt decision that hurts someone (not this case, a generic one) because of a non-discriminatory INTENT can be valid, while the same decision made for discriminatory reasons can be invalid because of that intent. There are plenty of other arguments that can be had here (Was this decision intentionally discriminatory? Does refusing to enforce (i.e. not taking action) equate to taking action?) but that it harms the team is not terribly relevant.

keithpeter 9y ago

Does this mean that N.W.A. can fill in their acronym? (Friend of mine was a big fan back in the day. We had arguments about the name)

scottLobster 9y ago

TMK the burden of defense is on the trademark holder, not the government. The Trademark simply allows the defense. Given that the government protects many other forms of offensive speech in much the same way I find that rather hypocritical. Should authors be allowed to plagiarize if the content is "offensive"?

michaelt 9y ago

Would you say the same logic should be applied to all intellectual property, or are trademarks special? For example, should copyright laws depend on whether the thing being protected is offensive?

icebraining 9y ago
Careful, now; Pfhreak never said it should not be protected, only that the issue is not "the government regulating band names".

stvswn 9y ago

That was the government's argument and the Court's decision addressed it. Trademarks are not "government speech," they existed before the government -- both at the state level and in Common Law. Your trademark is protected because it is your trademark, not because the government decides to protect it.

gnicholas 9y ago

That is what the government was saying. But a band would have a harder time staying alive if they had no trademark. For example, the band said that you can't get signed by a label if you don't have a trademark on your name. Also, you can't prevent others from selling merchandise bearing your name. So while the government wasn't telling them that they couldn't use the name, the government's desired outcome would have made it more difficult for the band to survive. Same for the Redskins — and how much money do you think they make on merchandise?

ergothus 9y ago
> the government's desired outcome would have made it more difficult for the band to survive True. The govt makes lots of enforcement/promotion decisions, many decisions that make things harder for other people/companies (and easier for others). In fact, if a govt decisions has an absolutely equal impact on all parties, it's probably not a law that does anything. I'm not saying there isn't a free speech issue - just that saying "by refusing to limit free commerce the govt is infringing on free speech" show the two sides of the argument, both reasonable. The govt wasn't refusing to enforce with the intention of HARMING anyone directly (probably), it was trying to avoid taking enforcement action that WOULD harm people. Not specific people, but the protected class of race in this case. If you think otherwise, imagine the hypothetical where this occurs, realize some people think of it this way, and see that it means the disagreement is reasonable. I'm probably 60/40 in agreement with the court decision, but that 40% is because I can see the arguments on the other side as well. Your premise that the harm to the team is a problem doesn't hold up overall: It's a tough concept to accept that _intent_ makes a law valid/invalid. Make voting harder with the intent to combat voting fraud, the law is likely valid. Make voting harder with the intent of disenfranchising a particular group, the law is invalid. A cop shoots someone because they felt threatened, is legal. A cop shoots someone because they want to, it's not legal. Agree that it SHOULD be that way or not, this is pretty well established in the court system for quite a while. Which means a govt decision that hurts someone (not this case, a generic one) because of a non-discriminatory INTENT can be valid, while the same decision made for discriminatory reasons can be invalid because of that intent. There are plenty of other arguments that can be had here (Was this decision intentionally discriminatory? Does refusing to enforce (i.e. not taking action) equate to taking action?) but that it harms the team is not terribly relevant.