Lawyers for the Native Americans battling the Washington Redskins over the team’s trademark argued in federal court Tuesday that their case has been boosted by a major Supreme Court decision on Confederate flag license plates. The Supreme Court declared last week that Texas did not violate the First Amendment in its ban of specialty license plates bearing the Confederate flag.
In a lawsuit filed in U.S. District Court in Alexandria, the Redskins are asking Judge Gerald Bruce Lee to overturn last year’s ruling by the U.S. Trademark Trial and Appeal Board stripping the team of its federal trademark registrations. The appeal board, petitioned by five Native American activists, said in its decision that “Redskins” violates the Lanham Act, which bars federal trademark registrations whose names “may disparage” or bring people into “contempt or disrepute.”
The team, which believes its mascot does not offend a substantial number of Native Americans, said even if that was true, the Lanham Act infringes upon the organization’s First Amendment rights.
But Jeffrey Lopez, who represents the Native Americans, pointed Tuesday to the Supreme Court ruling that Texas was not violating the First Amendment when it rejected a speciality license plate design with the Confederate flag proposed by the Sons of Confederate Veterans. The Supreme Court held that such a design would force Texas into giving off the perception that it was promoting a form of speech the state didn’t want to endorse.
Lopez argued that when the trademark appeal board rejected the Redskins trademark registration last year, it acted on the same basis. He said the trademark office can strip the football team of its trademark registrations without violating the team’s First Amendment rights. The team can still use and promote the name without needing to be included in the federal trademark registry, much like the Sons of Confederate Veterans can put a bumper sticker on the back of a car saying whatever it wants, Lopez said.
“This case is not about preventing the use of the name Redskins . . . all we can do is cancel the registration,” Lopez said, adding that a government-issued registration could lead people to believe it was endorsing the product. “The government issues the registration, and the government has its name all over it . . . but the trademark should never have been issued. The team has improperly benefited from the use of it.”
Robert Raskopf, the lead attorney for the Redskins, rejected those arguments and said the Supreme Court ruling last week about Texas license plates does not apply. He said that trademark registrations are more closely associated with the brand-holder, not the government. He said that when people think of Coca-Cola’s trademark, they don’t think about the government’s role, they think of the soda manufacturer.
“A Coke can,” Raskopf said, “is not a license plate.”
“This is pure private speech,” he argued.
He went on to say that the Redskins could be severely damaged if the team loses its federal trademark registrations, calling the implications “severe and manifold.”
At the end of the hearing, Lee said he would issue a written ruling that could decide the whole case, or determine whether it goes to trial later this year.
The Redskins have argued that the team name honors Native Americans, and owner Dan Snyder has vowed never to change it.