Post Syndicated from Bradley M. Kuhn original http://ebb.org/bkuhn/blog/2014/06/18/uspto-hack.html
I don’t often say good things about the USPTO, so I should take the
opportunity: the
trademark revocation hack to pressure the change of the name of the sports
team called the Redskins was a legal hack in the same caliber as
copyleft.
Presumably Blackhorse
deserves the credit for this hack, but the USPTO showed it was sound.
Update, 2014-06-19 & 2014-06-20: A few have commented that this isn’t
a hack in the way copyleft is. They have not made an argument for this,
only
pointed that the
statue prohibits racially disparaging trademarks. I thought it would
be obvious why I was calling this a copyleft-ish hack, but I guess I need
to explain. Copyleft uses copyright law to pursue a social good unrelated
to copyright at all: it uses copyright to promote a separate social aim
— the freedom of software users. Similarly, I’m strongly suspect
Blackhorse doesn’t care one wit about trademarks and why they exist or even
that they exist. Blackhorse is using the trademark statute to put
financial pressure on an institution that is doing social harm —
specifically, by reversing the financial incentives of the institution bent
on harm. This is analogous to the way copyleft manipulates the financial
incentives of software development toward software freedom using the
copyright
statute. I
explain more in this comment.
Fontana’s
comments argue that the UPSTO press release is designed to distance
itself from the TTAB’s decision. Fontana’s point is accurate, but the TTAB
is ultimately part of the USPTO. Even if some folks at the USPTO don’t
like the TTAB’s ruling, the USPTO is actually arguing with itself, not a
third party. Fontana further pointed out in turn that the TTAB is
an Article
I tribunal, so there can be Executive Branch “judges” who
have some level of independence. Thanks to Fontana for pointing to that
research; my earlier version of this post was incorrect, and I’ve removed
the incorrect text. (Pam Chestek, BTW, was the first to point this out, but
Fontana linked to the documentation.)
