The US Patent and Trademark Office has cancelled the trade mark registration held by the Washington Redskins football team, on the basis that the term "Redskins" is "disparaging to Native Americans". US law prohibits the registration of offensive or disparaging language as a trade mark.
This is a massive deal in the US – the Redskins have been around since 1932 and are said to be worth $1.6 billion. The trade mark has incalculable value. They will, of course, appeal this case all the way to Olympus. And the Cleveland Indians will be hanging on that outcome too.
In Australia, the law is less clear. The Trade Marks Act says a trade mark can't be registered if it contains or consists of "scandalous matter" or its use would be contrary to law. There's no precedent for a ruling that a racially offensive term is scandalous, but could it be said that its use may infringe the Racial Discrimination Act in that it would be likely to offend, insult or humiliate people of the relevant racial group?
It's not an abstract question – The Redskins trade mark is registered in Australia, both by the football team and by Nestlé for its famous Redskins lollies (which used to have a Red Indian on the wrapper but quietly dropped him some years ago). Other interesting examples include Dairy Farmers' Coon cheese, Golliwog biscuits (still owned by Arnotts but renamed a while back to Scalliwags), plus a pile of trade marks consisting of the term "Abo" and the very oddly named infant formula product "OZ Lebo".
This kind of issue gets people very heated – there was uproar when Enid Blyton's Noddy was outed as a racist because of his attitude to Golliwogs.
It's true that restricting free speech because of the risk to people's sensibilities is a slippery slope, particularly as language constantly changes its meaning. On the other hand, surely it isn't that difficult to understand how Native Americans might find the continued use of a term which identifies them by a skin colour they never actually had to be towards the humiliating end of uncomfortable. And is it that big a stretch for us to accommodate that discomfort? Legally, there is a good prospect that s18C of the Racial Discrimination Act could be called on by those affected by the use of racially insensitive trade marks to have them deregistered.
We think the Redskins could find a new name. We also think Noddy was innocently perpetuating an unfortunate racial stereotype which society can live without. Meanwhile, if you're working up a new trade mark yourselves, sorry but OZ Lebo is already taken.