An important note: Denial of a trademark doesn't mean that you can't use the term in commerce, it means that you can't receive protection for the term in commerce. Cartman on South Park, not always known for getting IP issues right (in the Fishsticks episode, he repeatedly claims he can patent jokes), gets this exactly right in the episode South Park did on the Redskins trademark issue. The government refusing to grant the trademark meant that Cartman could name his company the "Washington Redskins" with impunity.

On the one hand, this is why the PTO's determinations aren't straightforward violation of free speech. You can still say "redskin" and name your business with the word "redskin," you just don't get to have the government step in and stop anyone else from stealing your business name.

On the other hand, the PTO still shouldn't be making that determination. But it's not as straightforward a First Amendment issue as you make it out to be, because it's not about government suppression of speech, it's about whether government can decide not to offer commercial benefits to offensive speech.

"it means that you can't receive protection for the term in commerce."

Right, but why should you be denied protection others can receive for a fee?

...you just don't get to have the government step in and stop anyone else from stealing your business name.

Or from selling merchandise with your logo and company name on it.

"because it's not about government suppression of speech, it's about whether government can decide not to offer commercial benefits to offensive speech."

I don't know. Consider what would happen if the government decided that a book, which is offensive to the governing class, can be denied copyright protection on that basis. In this case, I think denial of copyrights on that basis would be a pretty clear due-process violation (using the First Amendment as a basis for what constitutes due process in this instance), since it would be placing that speech in a second-class category by denying it protection that is available to nearly all other speech. It's not like patents, where there are some specific criteria that have to be met (at least in theory). You can copyright or trademark damn near anything.

In the 1970s, the Left tried to promulgate a doctrine that "commercial speech" enjoys lesser protection than other speech under the First Amendment. For instance, under the doctrine, the government could ban advertising of any product if the government concluded that it was in the public interest (somehow) to do so. However, starting in the 1980s, the judiciary has pretty consistently shot this doctrine down on constitutional grounds. There are exceptions, the most significant one being the advertising ban on cigarettes, which remains in place today and has survived court challenges.

So my claim is that the PTO cannot refuse to grant a trademark because someone deems it offensive. Possibly an argument could be made that the PTO can deny a trademark if the purpose of the trademark is clearly to be deceptive or libelous. I would still argue against that; I think the PTO should be compelled to grant the trademark if it meets the standard of uniqueness, and let the existing legal remedies for false advertising or libel take care of the problem.

"...you just don't get to have the government step in and stop anyone else from stealing your business name."

This shouldn't be a right allotted to some -- those with bureaucrat-approved names -- and not others.

It absolutely is a chill on speech. It tells people to not choose "offensive" names or they won't be able to earn a living, which is increasingly hard these days.

What about the time-tested tradition of bands choosing bratty, purposely provocative names? Decades before The Slants, there was an all-woman band called The Slits. Day-Glo Abortions and Scraping Foetus Off the Wheel were two other early punk combos. There's a band with the initials A.C., the name of which I won't type out in Amy's genteel virtual parlor here.

Dead Kennedys, of course, achieved some level of fame. And I always smile when I see a listing for the New Orleans brass band Bonerama.

I'm more offended by Auto-Tune generic pop than I am any of this.

Brian,

"...it's not about government suppression of speech, it's about whether government can decide not to offer commercial benefits to offensive speech."

The issue isn't suppression, although the revocation is suppression, as Amy states. The issue is viewpoint discrimination. As I understand it, that's the due process claim from the Redskins' brief. The government provides a benefit, then denies it to those who displease the bureaucrats' opinions. Government must not work that way.

Disclosure: I'm a Redskins fan. I don't find the name offensive. Maybe that's bias from following the team for more than 30 years. However, I recognize why people find it offensive.

"However, I recognize why people find it offensive."

Yes. They find the coordinated effort to obtain a measurable victory repugnant solely because there are no native Americans on the team (even though they are not, themselves, in most cases), and they absolutely have no way fo finding out anything about the Florida State Seminoles, about which they remain silent because the Seminoles have the approval of the tribe.

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Are there patents on sex toys? If so, could this be leverage? How is Steely Dan allowed to keep their name, when, if it were popularized, it would offend pearl-clutchers?

Face it. The law was put there so the American government could not be compelled to offend people - and there IS a point where YOU would say, "I don't want my tax money wasted endorsing this." Sure it's being abused. But you're arguing about degree if you admit that.

Look up the laws on beer labels sometime...it's really, really dumb.

Kevin, don't forget The Cramps. And Steely Dan... ha, I remember the cover story they had to put out right after "Do It Again" hit the charts. They weren't in position to piss off the record label at the time, so they told people they named it after a DJ somewhere who allegedly went by Dan Steele. Not until later did they fess up.

I'm an Atlanta Braves fan, and there's been some discussion on the Braves fan blogs that if the government wins its case against the Redskins, the Braves (and the Cleveland Indians) will probably lose their trademarks too. People are kicking around suggestions as to what name the Braves should adopt if that happens. The two most popular suggestions seem to be: the Eagles (Atlanta's other major pro sports teams have/had raptor names: the Falcons, the Hawks, and the late great Thrashers), and the Hammers, after Hank Aaron ("Hammerin' Hank").

What asshole decided that team mascots are adopted to hold them down, anyway?

You don't pick a name because it associates you with losing, being a loser or just generally sucking at what you do!

Indians lost because they were outnumbered by a relentless culture that had tremendous technological advantages conferred by millennia of warfare over territory, not because they were slackers.

As an FSU alumnus, I find most of the fracas surrounding team mascots and logos silly. Being of Irish ancestry, I should be offended by the University of Notre Dame's drunken leprechaun mascot, but he looks enough like my Great Uncle Mike that I'm taking it as a shoutout.

And Steely Dan... ha, I remember the cover story they had to put out right after "Do It Again" hit the charts.

After puzzling about your comment, I looked up the origin of Steely Dan. Hmmm. Did not know that.

I'll think about that the next time "Do It Again" comes up on satellite radio (every half hour, it seems).

the Braves (and the Cleveland Indians) will probably lose their trademarks too.

Interestingly enough, the Atlanta Braves had a small part to play in the team being named the Redskins.

The Redskins were founded as the Boston Braves and played in the stadium of the then popular then-Boston Braves baseball franchise. The founders had purchased the rights and assets of the defunct Cleveland Indians NFL franchise (including uniforms and the logo). When the team moved from Braves Field to Fenway Park a year after being founded, the name was changed to avoid offending the new hosts by keeping the name of their crosstown rivals. To avoid the hassle of changing the logo, the team chose a name that worked with the current logo, the Redskins (which had the added benefit of being complementary to the host team's name, the Red Sox). The Boston Braves later moved to Milwaukee and then to Atlanta.

Conan, thanks for that... I didn't know about the origin of the Redskins. Here's one more tidbit about the Braves. You probably know, but they weren't called that originally; I think the first time they used that name was around 1910. At the time, one of their owners was one of the principals in the Tammany Hall political machine, which used an image of a brave as a logo.

I did not know that, Cousin Dave. Thanks.

When I'm bored I sometimes look up the history of various teams. I'd always assumed the Braves started out as the Braves and never look them up, even though I spent the late '80s and early '90s as a Braves fan (Glavine, Smolz, and Maddux were an unbelievable rotation).

If you can't ™ it, can't you still © it?

In the "Slants" case, there's no way the PTO is being consistent. Is there anyone out there that doesn't know what "N.W.A." stands for? And they even included the first word in album titles - which are also trademarked.