Patent Office "Redskins" Decision Increased Liberty, Shrank Government

Yesterday, the Patent Office declared that it would stop enforcing the "Redskins" trademarks because they are racially derogatory. The statute authorizing the extension of trademarks apparently forbids extending them over such racially derogatory things. Which makes sense, of course. If the state is going to use taxpayer money and public resources to violently attack people for copying logos and such, it probably shouldn't do so in a manner that props up racist taunts.

Just imagine the spectacle that it creates in the alternative world. Washington owner Daniel Snyder calls up the Patent Office and says "Hi patent office, this store down the street is using this racial slur I've used to name my football team. I'd like you to mobilize the state's police forces to attack them. Only I should be able to use that racial slur and you should work as my thug agent to ensure that state of affairs obtains in the world."

What's been funny about the fall out is that conservatives, who naturally oppose the decision, have had a difficult time describing what exactly happened. The Manhattan Institute, for instance, described it thusly: "The PTO has ruled that a basic right, the right to property, can be waived." All day yesterday, twitter was filled with these kinds of remarks, much to my amusement.

In reality though, the Patent Office's decision quite literally does nothing. Whereas previously the Patent Office was intervening in the economy through the extension of a trademark (government-granted monopoly), now it isn't. This means more liberty for everyone. Previously, you had set of liberties X. Now you have set of liberties X plus the ability to copy the Redskins logos and such.

Moreover, the Patent Office decision shrinks the size of government. Previously, the size of government was X plus constantly looking out to violently prevent people from copying the Redskins logo. Now it is just X. Less government and more liberty: what's not to like?

On a slightly more serious note, this incident is, as Elizabeth Stoker remarked on Twitter, a kind of legal realist Christmas. If your "property right" evaporates the second the government decides it is going to sit on its hands and do nothing, then what is a property right really?

In the intellectual property scenario, the state-constructed nature of this right is easier to see. Some libertarians even manage to see it and then oppose it on those grounds. But it's the same thing for physical property as well. Only through state violence are people prevented from acting on pieces of the world (e.g. houses, TVs) as they see fit, just as it's only through state violence that people are prevented from copying the Redskins logos. It's all state interventions all the way down.

If the Redskins change their name because the state has decided to stop assisting them in their state-granted IP monopoly, as Sally Jenkins worries they might, then isn't it the case that public taxpayer-funded assistance in the form of trademark enforcement provided to Daniel Snyder by the government is a but-for cause of the team's name? That is, but for the government handout, the Redskins wouldn't be named that? Yes, that is the case. Should it trouble you that government welfare is a but for cause of racial taunts being used as NFL team names? I don't know. Depends on your views.

But whatever your view on that specific question, we should at least be able to agree on the description of what is going on here. The state has declared that it will sit on its hands, stop intervening in the economy in this particular way, and thus shrank the size of government and expanded liberty. For better or worse.

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