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Portland band trademark case before Supreme Court

Wall Street Journal Editorial,
Jan 18, 2017

If you start a rock band and give it a shocking name, can the government prevent you from trademarking it? That’s the question for the Supreme Court Wednesday as the Justices decide if the feds can discriminate against trademark applications based on the viewpoint of the speech.

Simon Tam formed an Asian-American rock band that calls itself “The Slants,” appropriating an ethnic slur as a statement against discrimination. That strategy has a long history. But when the Portland-based band applied for a trademark in 2011, the U.S. Patent and Trademark Office denied the application on grounds that the name disparages Asians (Lee v. Tam).

Section 2(a) of the 1946 Lanham Act says trademarks can be denied if the name consists of “matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” Even if The Slants meant their name as a statement of pride, the trademark office ruled, its potential to offend others is grounds for denying it.

The trademark office’s ruling was upheld by a three-judge panel of the Federal Circuit. But the full circuit overturned the ruling as a violation of the First Amendment. “The government cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks,” the court wrote. The “First Amendment protects even hurtful speech.”

That protection is easily understood in other contexts. Imagine if the copyright office refused to extend copyright protection to a book based on a plot or language the government found offensive. Rock bands virtually invented the practice of choosing provocative or offensive names for the purposes of expression or marketing. As the Cato Institute notes in a brief, what are we to do with the Queers, Queen, Pansy Division, or N.W.A., which uses a racial slur against blacks.

The feds claim the trademark denial isn’t a free-speech violation because the rockers can still call themselves The Slants. But when trademark status that is commonly conferred is denied based on the message in the name, the denial amounts to viewpoint discrimination with harmful consequences. Mr. Tam can’t benefit from the use of that trademark or prevent the term from being used by others.

Lower courts have considered these issues in the battle over the Washington Redskins, which had its trademark denied by the Obama Administration in 2014. The Supreme Court declined to hear the Redskins appeal, but a victory for Mr. Tam would also govern the Redskins.

The government says the First Amendment doesn’t oblige it to endorse racist or otherwise offensive speech, but with so many diverse trademarks issued each year, no one thinks a trademarked name is government speech….

The pitfalls of employee rewards

By Dr. Eric Fruits,
Oregon Economist
On Demand Newsletter

Employee of the Month. Sounds like a great idea. For the price of a cheap plaque and a good parking spot, bosses can motivate employees to deliver superior service. So the thinking goes.

Academics call it “status competition.” And sometimes it backfires.

Wells Fargo has been accused of opening millions of fake bank accounts. Employee compensation was tied to opening new accounts and workers could lose their jobs if they didn’t meet targets. They also had status competitions.

According to the Miami Herald, the east coast region for Wells Fargo was run by Laura Schulte for about five years. Staff recall her sales promotion called “Schulte’s All Stars.” A 2010 copy of the all star list obtained by Bloomberg ranked managers by a mix of metrics, all gauging volume in different ways. Some workers were on track to be in the “Schulte Hall of Fame.” Sure, targets were hit, but laws likely were broken.

What this have to do with the Wehrmacht?

Research published by the National Bureau of Economic Research highlights the tradeoff between the benefits of higher performance against the costs of risky behavior using an … um … “interesting” data set.

In World War II, the German air force had a version of employee of the month. It was a daily bulletin called the Wehrmachtsbericht, produced by the propaganda department and broadcast daily over the state controlled media.

Being mentioned by name in the bulletin was one of the highest forms of recognition used by the German armed forces. Only 1,200 of the 18 million men in the armed forces were mentioned by name in the bulletin.

German pilots would get mentioned for an extraordinary number of air victories. Here’s Hans-Joachim Marseille’s mention in the bulletin on June 18, 1942 (his second mention):

First Lieutenant Marseille shot down ten enemy planes in a 24 hour period in North Africa, raising his total score of aerial victories to 101.

The bulletin served two purposes. The first, as propaganda to raise morale among the German people. The second, was to inspire German soldiers to achieve top performance.

But did it work?

The researchers divided pilots into two groups: top-ranked pilots and everyone else. Top ranked pilots were in the top 20 percent of victories (number of enemy planes shot down). Everyone else was in the other 80 percent.

A statistical analysis of pilots victories found that performance overall improved in the periods after a pilot gets a mention in the bulletin. The highest ranked pilots saw a 20 percent increase in their scores while the lower ranked pilots saw a modest increase.

What’s the cost?

It’s safe to say that dogfights are a dangerous undertaking. To shoot down an enemy plane, the pilot has to put himself in harm’s way. A pilot seeking to increase his score is increasing the chances that he’s going to get shot down himself.

Top-ranked pilots saw no significant change in their “exit rate.” The other 80 percent of pilots saw their exit rate increase by 20 percent—and, in some cases, more than double.

Overall, the gain in “victories” from mentioning pilots in the bulletin was outweighed by the loss in pilots from taking additional risks.

There’s a management lesson: Incentives can spur superior service, but can also encourage risky action. Think through the implications of your incentives.

Rise of one-man manufacturers

The Wall Street Journal has reported on an unexpected business phenomenon in the manufacturing world.   As manufacturing jobs decline nationwide, there is an increase in one person manufacturing jobs run by businesses with only one employee.   This is proof that small business is still an important driver in jobs.

Three NW billionaires in top 25

According to Forbes which ranks the world’s billionaires, of the top 100, Phil Knight at #24 is the only Oregonian to make the list. Recently Knight made a donation of $500 million to his alma mater, the University of Oregon. The gift is the largest ever pledged to a public university. Bill Gates of Microsoft and Jeff Bezos of Amazon – – #1 and #5 respectively – – are the only others from the Pacific Northwest.



#1 Bill Gates $75 B
#2 Amancio Ortega $67 B
#3 Warren Buffett $60.8 B
#4 Carlos Slim Helu $50 B
#5 Jeff Bezos $45.2 B
#6 Mark Zuckerberg $44.6 B
#7 Larry Ellison $43.6 B
#8 Michael Bloomberg $40 B
#9 Charles Koch $39.6 B
#10 David Koch $39.6 B
#11 Liliane Bettencourt $36.1 B
#12 Larry Page $35.2 B
#13 Sergey Brin $34.4 B
#14 Bernard Arnault $34 B
#15 Jim Walton $33.6 B
#16 Alice Walton $32.3 B
#17 S. Robson Walton $31.9 B
#18 Wan Jianlin $28.7 B
#19 Jorge Paulo Lemann $27.8 B
#20 Li Ka-shing $27.1 B
#21 Beate Heister & Karl Albrecht Jr $25.9 B
#22 Sheldon Adelson $25.2 B
#23 Geroge Soros $24.9 B
#24 Phil Knight $24.4 B
#25 David Thomson $23.8 B

Measure 97 Would Hurt Small Business

The assumption behind Measure 97 is that every corporation is profitable and that the profits that these corporations are generating are excessive. If that assumption is true, then Measure 97 makes a lot of sense.


The problem is that it’s not true.

Did you know that the average corporation only makes 3 percent to 8 percent net profit? Oregon’s Measure 97 will tax these corporations 2.5 percent of their gross sales above $25 million (the tax is not on their profits). In other words, if a corporation makes a 4 percent net profit on sales above $25 million, they will have to pay out more than 50 percent of their actual profit.

In simpler terms, if a corporation generates $25 million in sales above the threshold and only makes a 3 percent net profit ($750,000), they will have to pay $625,000 in taxes. If they only make 2 percent net profit ($500,000), they will have to give all of their profits, and then some, to the Oregon Department of Revenue.

So why should you care? If you have any kind of retirement account, that money is most likely being invested in large corporations. Their profit or loss is your profit or loss.

Eventually these corporations will be forced to substantially raise their prices, which will result in higher costs to you. The estimates are currently $600 or more per Oregon household.

If every business were successful and profitable, then we absolutely should raise corporate taxes. The problem is that they’re not.

Did you know that only half of all new businesses will still be around in five years and that after 10 years, only 30 percent will be left? Maybe you will recognize some of these large companies that recently have gone bankrupt? Delta Airlines, Sports Authority, Circuit City, Linens & Things, Radio Shack, Borders Books, Blockbuster, Brookstone, and Sbarro Restaurant, just to name a few.

Measure 97 will likely increase the number of bankruptcies since it is a tax on sales and not on actual profits. Remember that bankruptcy destroys the lives of the people who work for that company.

As the corporate tax rates increase in Oregon, more businesses will move out of Oregon and some will even move out of the United States, causing increased unemployment.

Unemployment is the greatest drain on our society and public resources, while keeping people employed is the best way to fund our schools and other vital government services.

The proponents of Oregon’s Measure 97 make a great emotional appeal, but unfortunately it’s a very poor intellectual argument.

Photo credit: https://flic.kr/p/qsq2m

Seahawks #1 Ticket Price #3 Jerseys

This year the Seattle Seahawks finally dethroned the legacy of the New England Patriots for having the highest average ticket costs in the National Football League for secondary sales.

The total costs are $466 for an average home ticket price. The Patriots were slightly behind at $454. The data comes from an online ticket re-seller called TicketIQ.


These Seahawk ticket sales represent a 7% rise from the previous year.

The average NFL ticket cost is $248 for secondary pricing.
This puts the Seahawk prices not far from double the average team price.

The Seahawks also scored #3 on the most team Jerseys sold according to an analysis by the Wall Street Journal. The Dallas Cowboys and Green Bay Packers take the number 1 and 2 spot respectively.

In 2015, Seahawk Quartback, Russel Wilson, was the NFL’s greatest seller of jersey and merchandise products for a single player according to the NFL website. The team appeal of the Seahawks appears to out-size both their team standing (four teams went farther in the play-offs than Seahawks in 2015) and their city/state home population compared to many other big population franchises.


Read more about Russell topping sales here — Russell Wilson merchandise remains NFL’s best seller

Read more about 2016 team sales here – When It Comes to Jerseys, Cowboys Are Still America’s Team

Oregon’s Coming Work Scheduling Mandate

The Oregon legislature is planning a new expansive employment law that deals with how employers schedule their workers. The new law makes it both more difficult and more expensive to schedule employees.

The law would likely include:


  • A requirement that employers provide work schedules two weeks in advance, with a penalty of up to four hours of pay for subsequent changes;
  • A requirement to provide up to four hours of penalty pay for scheduled on-call shifts when the employee is told not to report; and
  • A requirement to offer more work to certain part-timers before hiring additional staff.

The new law imposes the onerous work rules of union shops on all businesses–big and small, profit and nonprofit. This sort of one-size-fits-all approach to employment can drive smaller enterprises out of business.

For instance, imagine a construction firm building a new home. Because of backlogs with the city government, the necessary permits are two weeks behind in being issued, halting construction. A work schedule created two weeks earlier could not have anticipated the delay. No matter: The backlog at the city permitting office means that the construction firm must pay workers who have no work to do. What seems like a tiny backlog to city bureaucrats can turn into a financial disaster for small businesses.

It works the other way around, too. Think of a newly opened restaurant. A week after opening, the local paper publishes glowing review, causing a surge of customers. A work schedule put together two weeks earlier could not have even guessed at the restaurant’s new found popularity. Because of the new law, the restaurant cannot add more staff to accommodate the unexpected new customers. As a result, the restaurant get slammed on Yelp for its slow service and business drops off to a trickle and the restaurant closes within the year.

Even local governments will suffer under such onerous regulation. Consider a city swimming pool faced with a thunderstorm in the middle of July, shutting the pool for the day. A work schedule created two weeks earlier could not have planned on a thunderstorm and the resulting pool closure. The law doesn’t care about that. The last-minute pool closure means that the city must pay the lifeguards, swim instructors, and concession workers even though the pool is not bringing in any money from admission fees (and may need to refund money from cancelled classes). The cost of paying for unscheduled closures means fewer summer programs at the city’s pools.

Proponents of “predictive scheduling” laws claim to be protecting workers from capricious or abusive work schedules. These laws can backfire when “scheduling certainty” the flexibility that many workers desire. For example, recent research surveying 100 restaurant and retail businesses likely affected by Washington, DC’s law found that most employers (73 percent) would offer employees less flexibility to make schedule changes. More than half of the businesses said they would reduce the number of part-time workers. Half of the employers said they would reduce overall employment in their firms. By increasing the cost of using employees, these laws would reduce employment. In addition, they may make working conditions worse by forcing rigid scheduling rules typical of unionized workplaces.

Employment contracts are voluntary contracts between the employer and employee. Good employers who want to keep good employees will give them the scheduling certainty they need. At the same time, good employees who want to work for good employers will entertain the scheduling flexibility needed to keep the employer in business. One-size-fits all laws are the problem, not the solution.

New Minimum Wage chart

Here are the new rates by area of the upcoming minimum wage changes.


Minimum Wage spikes cause lay-offs

By Oregon Small Business Association,

When the number of jobless increase, because of minimum wage hikes, it impacts real people. The OSBA has issued this ad to help spread the news of the current Senate Bill 1532 and the damage of minimum wage spikes.

Oregon needs this energy bill

congress-capitolImportant energy bill is being debated in the Senate

The Energy Policy Modernization Act, introduced by Senators Lisa Murkowski (R-Alaska) and Maria Cantwell (D-Washington) and currently being debated in the Senate. This legislation marks the first time since 2007 that Congress has set out to revamp the nation’s energy policies.

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