Second Quarter – Redskins on the Defence

Update on the Washington Redskins Trademark dispute

As was discussed in our previous blog here, Section 2(a) of the Lanham (Trademark) Act (U.S.) prohibits the registration of trademarks which are scandalous, immoral, or disparaging. In July 2014, six federal trademarks belonging to the Washington Redskins were cancelled as each of the six marks were found by the Federal Court to be disparaging to Native Americans.

This dispute is far from over.

The Washington Redskins’ legal team recently submitted a compelling 64-page brief arguing against the decision. One of the primary arguments submitted is that Section 2(a) burdens freedom of speech by giving the government the ability to cancel trademarks with messages or meanings it does not approve of. In the previous Federal Court decision, District Judge Gerald Bruce Lee stated trademark protection is a form of “government speech” carrying the government’s endorsement and therefore exempting trademarks from Frist Amendment rights. Counsel for the Redskins raised two issues with this this conclusion.

First, if trademark protection is a form of government speech and endorsement, this would mean that the government endorses the thousands of offensive marks which are currently registered. The Redskins’ Counsel cited several offensive trademarks that are registered in the U.S. but which have not been cancelled, including Aunt Jemima, Uncle Ben’s Rice, Red Man Tabaco, countless confederate flag marks, and others. In the words of the Washington Redskins’ legal team, the federal register is “infested with countless trademarks conveying racist and offensive messages”.

Secondly, and more importantly, trademark registration cannot be considered government speech. Like the process of registering copyrights or patents, the government acting as a regulator, analyzes a trademark for statutory compliance and evaluates whether or not they are entitled to legal protection. As argued by Redskins’ Counsel, banning a “disparaging” trademark would be just as unconstitutional as banning a registered copyright in a book that the government finds disparaging.

The Washington Redskins’ trademarks will not be cancelled until all appeal processes have been exhausted. The Defendants, Amanda Blackhorse et al., will likely file a response in January.