Redskins: Trademark Cancellation Worse than Initial Denial

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The Washington Redskins are entangled in a trademark battle over its name and is urging the Supreme Court to hear its case. The football team disagrees about the offensiveness of the name and contests the constitutionality of Section 2 (a) of the Lanham Act which bans trademarks that are “disparaging.” Under the act, the government cancelled the Redskins trademarks after 23 years.

The Lanham Act was also the basis for the government’s refusal to register the trademark of the Asian-American rock band the “Slants.” However, in the high profile case Tam v. Lee, the Federal Circuit held that the ban on disparaging marks violates the First Amendment. The Supreme Court will soon decide whether it will hear the case of the Slants and the Redskins wish to be involved in that case.

In its reply to the government’s urge against the case being heard by the Supreme Court, the team contends that an initial refusal of a patent is less damaging than a cancellation of twenty year old trademarks. The Redskins characterized the cancellation as a forced name change of an adult and compared it to the cancellation of a hypothetical birth certificate of a 23-year-old named Joe Redskins. The team argues that a forced name change would be “a massive disruption to settled expectations that flows from cancellation” which “affects the owners of all 2 million registrations.” Therefore, according to the Redskins, a cancellation after two decades creates a greater burden than an initial refusal like the Tam case. Thus, the Redskins maintain, a cancellation issue touches an important legal question that is not addressed in the Tam case on appeal and therefore merit review by the Supreme Court.

Encouraged by the Tam ruling, the team argues in its reply  “nine in 10 Native Americans say they are not offended by the Washington Redskins name.” Furthermore, “ [a] 2004 poll by Annenberg Public Policy Center found the same result,” according to the Redskins. The team is displeased with the idea that “the PTO may cancel 50- or even 500 year old registrations even if every shred of evidence has been lost and every witness is dead.” The team reasons that “the government’s dangerously expansive view of its cancellation power only highlights that this issue should be front and center when this Court decides the First Amendment question.”

Additionally, the team argues that the Supreme Court should consider whether a §2 (a) is too vague and whether cancellation triggers procedural due process if delay has caused prejudice and because of the contrast in courts the Supreme Court should take up the case.

In the meantime, the Redskins are appealing the decision by a Virginia federal judge that revoked the Redskins trademarks last year.

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