The Federal Circuit Breathes Life into the Redskins’ Appeal
Published: January 4, 2016
If you’re a fan of intellectual property or the National Football League, you may have heard about last July’s ruling in the United States District Court for the Eastern District of Virginia. There, Judge Gerald Bruce Lee affirmed the Trademark Trial and Appeal Board’s ruling that the team’s moniker is offensive to Native Americans, and therefore ineligible for trademark protection under the Lanham Act, which prohibits registration of disparaging marks. This battle was fought over more than 20 years. The effect is that the Redskins can continue to use the mark, but they do not have the trademark protections provided by the Lanham Act. The Redskins, clearly unhappy with this result, have appealed the matter to the Fourth Circuit of Appeal. That matter is currently pending and the opening briefs were recently filed.
In its opening brief, the Redskins immediately attacked the District Court’s ruling that the Redskins’ registration is not entitled to First Amendment scrutiny because registered trademarks are “government speech” and the registration is a government subsidy “program.” Counsel for the Redskins, Quinn Emanuel and Arnold & Porter, argue that this notion is disturbing. Specifically the opening brief states that: “The PTO has registered hundreds if not thousands of marks that the Team believes are racist, or misogynistic, vulgar, or otherwise offensive. By way of example only, the following marks are registered today…DANGEROUS NEGRO shirts… DAGO SWAGG clothing…BAKED BY A NEGRO bakery goods….These are not isolated instances. The government routinely registers pornographers’ marks” as well. These marks are clearly offensive, and like the Redskins mark, racially charged.
The Redskins argued that this is not government speech, nor is the government subsidizing these marks. Instead, the government is a regulator who determines whether a trademark meets certain criteria, such as distinctiveness. And according to the Redskins, because the registration constitutes government regulation, a ban on registering disparaging trademarks unconstitutionally burdens speech based on content and viewpoint; both of which are prohibited by the First Amendment.