Lots of names were dropped in the comically vulgar but serious legal brief the Washington Redskins filed last week to defend their federal trademark registrations. How, the team’s lawyers demanded in an 82-page brief that galloped across the Internet, could the federal Trademark Trial and Appeal Board strip the Redskins of their registrations because the moniker offends some Native Americans, but preserve registrations for Take Yo Panties Off clothing, Midget Man condoms, TeensDoPorn.com, Baked By a Negro cookies and scores of other companies?
Those names — and many more too profane to publish here — were a provocative new wrinkle in the National Football League team’s long-standing legal argument that far worse monikers than the Redskins have trademark registrations.
But one other important name was also new in the brief filed with the U.S. Court of Appeals for the 4th Circuit, based in Richmond: Lisa S. Blatt. The 50-year-old Arnold & Porter partner is the Redskins’ new attorney in the case, and she’s a big-time advocate.
Blatt has argued 33 cases before the U.S. Supreme Court — more than any other female litigator in the country. She won 32 of them. The Web site 360 Law dubbed her Arnold & Porter’s “pugnacious powerhouse” and lauded her “ruthlessly martial brand of courtroom combat.”
Blatt, who lives in Washington, declined to be interviewed for this article. She has a policy, she said, of not discussing her pending cases.
After graduating from law school at the University of Texas at Austin in 1989, Blatt went on to clerk for Ruth Bader Ginsburg when she served on the U.S. Court of Appeals. Now Blatt serves as the chair of Arnold & Porter’s appellate and Supreme Court practice.
In one of her most recent victories, Blatt represented a pharmaceutical giant in a dispute that ultimately persuaded a federal appeals court in San Francisco to declare that people could not be struck from juries because of their sexual orientation. The 2014 ruling, the first of its kind at that high of a level in the federal court system, enabled gay men and lesbians to have the same civil rights as women and racial minorities.
Blatt also made news two years ago when she represented a white couple from South Carolina and convinced the Supreme Court that they should be allowed to keep a child known as “Baby Veronica,” whom they had adopted from the girl’s biological mother in Oklahoma. In that case, Adoptive Couple v. Baby Girl, Veronica’s father, a member of the Cherokee Nation, had initially renounced custody, then changed his mind and reclaimed her under the Indian Child Welfare Act, a law passed in 1978 meant to keep Indian children with their families and tribes.
But Blatt, who represented Matt and Melanie Capobianco of Charleston, S.C., persuaded the court’s majority that the Indian Child Welfare Act did not apply because the father had given up his parental rights before the girl’s birth.
Her new clients are also under fire from some Native Americans. In July, they won a big legal and symbolic victory in the war over the team’s name when a federal judge ordered the cancellation of the Redskins trademark registrations. The trademarks remain in place while the team appeals the decision.
Despite the litany of vulgar trademarks cited in her brief, Blatt makes a serious argument against the government’s contention that federal trademark registrations are forms of government speech and are therefore exempt from First Amendment scrutiny. In essence, she argues: Do customers of the Take Yo Panties Off clothing line really think that the government endorses the product simply because it has a trademark registration? Or do members of the public think Take Yo Panties Off has a federal trademark registration simply to protect itself against competitors?
“The notion that all two million currently-registered marks are government speech is astounding,” the Redskins brief states, before listing other entities with registrations such as Bound Gangbangs and Thug Porn. “None of this is government speech. Nor is the government subsidizing these marks. Registration of trademarks, like copyrights and patents, is not akin to a government loan, grant, or other type of gift. Rather, the government, acting as a regulator, finds that because trademarks meet statutory criteria (namely, being distinctive), they are entitled to legal protection against interference from other private parties. And because trademark registration constitutes government regulation, this case is easy.”
Still, the commentariat had a field day with the products listed in the brief.
Redskins lawyers also cite “Hot Octopuss anti premature ejaculation cream.” Law school sounds awesome pic.twitter.com/9VJP3iT1c0
— Dan Steinberg (@dcsportsbog) November 3, 2015
Steinberg called some of the companies cited in the brief to ask what they thought of the argument the Redskins are making. The responses were quite funny.
Other writers had their fun, too.
“The Skins are desperately trying to preserve their trademark,” Deadspin wrote. Esquire gave the team a backhanded compliment: “It’s a brilliant legal strategy borrowed from middle school: point fingers at everyone else,” the magazine’s Web site said in its headline.