The Uphill Fight to Protect The Washington Redskins’ Trademark Continues

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On Friday October 30, 2015, the Washington Redskins initiated its appellate argument against the federal judgment upholding the cancellation of the franchise’s trademarks. The appeal to the Fourth Circuit marks the continuation of a two-decade long fight between the NFL franchise and a group of Native Americans who believe that the team name is a disparaging term, in violation of Section 2(a) of the Lanham Act.

In June of 2014, the U.S. Patent and Trademark Office (PTO) cancelled six trademarks under the Washington Redskins name after a group of representing Native Americans established that the team name was disparaging. The Redskins appealed to the federal court where U.S. District Judge Gerald Bruce Lee upheld the cancellation of the trademarks, holding that the team name disparages a “substantial composite” of Native Americans. In raising its appeal, the Washington Redskins argue that the District Court erred in upholding the cancellation of the marks as the ruling represents a misapprehension of the First Amendment.

In its appeal, the team argues that Section 2(a) of the Lanham Act is “hopelessly vague” and that the PTO’s cancellation of the team’s trademark violates the First Amendment protection to freedom of speech.

The appeal provides, “[t]here are extraordinary free speech principals at issue far beyond the Redskins trademarks. Cancelling a registration based on the government’s disapproval of a trademark discriminates against speech based on content and viewpoint. The District Court nonetheless declared the PTO’s action exempt from any First Amendment scrutiny because registered trademarks are all ‘government speech’ and registration is a government subsidy ‘program’.”

The First Amendment of the United States Constitution acts as a safeguard to protect the speech of private individuals against government regulation. Although the government must maintain a neutral viewpoint in regulating private speech, they do not need to maintain a neutral viewpoint as to government speech. However, it can often be difficult to determine when the government is speaking for itself or when they are regulating speech in a way that violates the First Amendment.

In their appeal, the Redskins express their disagreement with the notion that all two-million currently registered trademarks are government speech. In support of their argument, the team suggests that, “ the PTO has registered hundreds if not thousands of trademarks that the team believes to be racist, or misogynistic, vulgar, or otherwise offensive.” The team provided numerous examples of such offensive registered trademarks, maintaining the view that not all registered marks are government speech nor is the government subsidizing such marks.

The Washington Redskins have proven that they will continue to fight to protect their trademarks. Until the team has exhausted the appeals process provided by the federal court system, the ordered cancellation will not go into effect.

 

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