Nearly four months after a federal judge ordered the cancellation of the Washington Redskins’ federal trademark registrations for disparaging Native Americans, the National Football League team is appealing with a provocative tactic: listing the names of porn, clothing and beer companies that use offensive language but nonetheless have the support of the U.S. Patent and Trademark Office.
“By way of example only, the following marks are registered today: Take Yo Panties Off clothing; Dangerous Negro shirts . . . Midget-Man condoms and inflatable sex dolls,” the Redskins’ attorneys wrote in their opening brief filed Friday with the U.S. Court of Appeals for the 4th Circuit, based in Richmond. The lawyers later added a footnote with 31 more trademark registrations, many of them unprintable in The Washington Post. On the list: “Party With Sluts . . . Redneck Army apparel . . . Booty Call sex aids . . . Dumb Blonde hair products.”
In their bid to preserve the Redskins’ trademark registrations, the team’s attorneys are making a two-pronged argument: How can the government allow federal trademark registrations for those inflammatory entities but strip the Redskins of their protections? And, regardless of how offensive a trademark’s name might be, how can the government reject a registration without infringing on First Amendment rights?
“A ban on registering ‘disparaging’ trademarks unconstitutionally burdens speech based on content and viewpoint, just as would a ban on registering copyrights for ‘disparaging’ books,” wrote the team’s attorneys, led by Lisa Blatt and Robert Raskopf.
Maury Lane, a spokesman for the team, said in a statement: “In fact, since 1870, over three million trademarks have been registered, and we have found none that have ever been cancelled for being disparaging. We believe that the government’s action tramples core principles of free speech and sets a dangerous precedent for other brands.”
The team is on its third attempt in the past 18 months to save its trademark registrations.
It lost the first round in mid-2014, when the federal Trademark Trial and Appeal Board declared in a 2-to-1 ruling that the name offends a substantial number of Native Americans and is therefore ineligible for federal trademark registration under the Lanham Act, which doesn’t permit such protection for names that “may disparage” or bring people into disrepute.
The appeal board had been petitioned by a group of five Native American activists, led by Amanda Blackhorse, a Navajo Nation member and social worker.
The Redskins sued Blackhorse and the four other Native Americans in federal court in Alexandria to overturn the ruling. But the team lost that round in July, after U.S. District Judge Gerald Bruce Lee upheld the appeal board’s ruling.
Most notably, Lee said stripping the team of its federal trademark registrations doesn’t violate its First Amendment rights. He said such protections are a form of government speech carrying the government’s endorsement and are therefore exempt from First Amendment scrutiny.
The Redskins’ attorneys, in their opening brief before the appeals court, contested Lee’s argument.
“No one today thinks registration reflects government approval,” they wrote. “But if this Court holds that it does, how will the government explain registrations like Marijuana for Sale . . . [or] Licensed Serial Killer? . . . Does registration of the Church of Jesus Christ of Latter-day Saints unconstitutionally endorse religion?”
Attorneys for Blackhorse declined to comment. They are expected to file a response in court by mid-January.
Daniel Snyder, the team’s owner, says the name honors Native Americans, and he has vowed never to change it. He points to many Native Americans who love the mascot, citing them as proof that opponents don’t speak for everyone.
The cancellation of the team’s trademark registrations won’t go into effect until the Redskins have exhausted the appeals process in federal court. Even if the team takes the case to the Supreme Court and loses, it can still use the name “Redskins” and leverage trademark protections under state law. Still, the team has argued that losing its protections could hurt its brand and aid copycats who want to sell unlicensed merchandise.