The name “Redskins” is offensive to Native Americans, and we wish that the owners of the National Football League franchise in Washington, D.C., would retire it. But the government's decision to deprive the name of federal trademark protection went too far, and the team has the 1st Amendment on its side in challenging that decision.
In 2014, at the behest of five Native Americans, the U.S. Patent and Trademark Office canceled the Redskins' trademark registration, citing a federal law that prohibits trademark protection for names that “may disparage ... persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute.” The decision didn't prohibit the team from continuing to use the name, and left in place some legal avenues for the team to contest trademark infringement of the “Redskins” name by others. In July, the decision was upheld by a federal district judge in Virginia.
Now the team is appealing that decision to the U.S. 4th Circuit Court of Appeals, and it makes several compelling arguments. The most persuasive is that the “disparagement” clause in trademark law violates the 1st Amendment because it “discriminates based on content and viewpoint.”
Ordinarily, the government may not regulate speech based on its content, but the Supreme Court has carved out an exception for “government speech.” In upholding the Patent and Trademark Office's action, U.S. District Judge Gerald Bruce Lee concluded that decisions about trademark registration are “government speech.” The Supreme Court invoked that same rationale earlier this year in ruling that the state of Texas could reject specialty license plates featuring the Confederate battle flag. We thought that decision was wrong, but even if one considers a slogan on a license plate an expression of the government's opinion, the same can't be said for the 2 million trademarks registered by the office.
As the team notes in its brief: “No one thinks about the government when buying Nike shoes, surfing Google or watching National Football League games. Many marks, such as ACLU and National Rifle Organization, represent organizations that regularly oppose government regulation.” As for offensiveness, the team notes that the list of registered trademarks includes several that are lewd or insulting, such as SlutsSeeker (a dating service), Dumb Blondes Beer and Dangerous Negro shirts.
The legitimate mission of the Patent and Trademark Office is to regulate intellectual property rights by determining whether a name or symbol is original and distinctive. It shouldn't be in the business of choosing among trademarks on the basis of offensiveness. The 4th Circuit should recognize that fact and leave the debate over “Redskins” to the court of public opinion.