Redskins: Trademark cancellations violate the First Amendment

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The Washington Redskins football team is arguing that a section of law used to cancel many of its trademarks is unconstitutional. 

The NFL team fired its opening shot in the Fourth Circuit Court of Appeals late last week after losing two previous decisions in district court and at the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board. 

{mosads}The team argued the law in question harms protected speech by canceling the trademark registration of terms that the government disfavors. The team also argued the district court judge was wrong to conclude that trademark registration amounts to government speech and therefore does not bring up First Amendment questions. 

A trademark is simply the government’s conclusion that a name is distinctive and entitled to legal protections against infringement, the brief argues. 

“The notion that all two million currently-registered marks are government speech is astounding. It is equally disturbing. The [Patent and Trademark Office] has registered hundreds if not thousands of marks that the Team believes are racist, or misogynistic, vulgar, or otherwise offensive,” the brief says. 

The team’s lawyers then ticked off a number of registered trademarks that it finds offensive, including ones that reference black people, women, people with disabilities and pornography. 

“None of this is government speech. Nor is the government subsidizing these marks. Registration of trademarks, like copyrights and patents, is not akin to a government loan, grant, or other type of gift,” the brief says.

The Patent Trail and Appeal Board ruled last year that the team’s name was disparaging to Native Americans at the time it was registered, violating the Lanham Act. A district judge agreed in July.

The team’s trademarks are still in effect while the appeals process proceeds. A final ruling against the trademarks would not bar the team from using the name, but it would remove some federal protection. 

In addition to the First Amendment concerns, the team argued that no one has proven that the term “Redskins” was disparaging at the time of registration. It also argued a legal case at this point is unfairly biased because too much time has gone by since the registration first went into effect in 1967. 

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