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Redskins Say Canceling Trademark Was Unconstitutional

The Washington Redskins have told a federal appeals court that the Patent & Trademark Office's (PTO) retroactive cancellation of its trademark registrations for the NFL team violates the First Amendment, and can't be squared with PTO's support of marks that the team says are disparaging and worse.

The team is appealing a district court summary judgment upholding the cancellation to the U.S. Court of Appeals for the Fourth Circuit, asking it to reverse the lower court.

In its opening brief, the team said the district court erred in granting summary judgment and that the PTO's cancellation violated the First and Fifth Amendments.

"Cancelling a registration based on the government’s disapproval of a trademark discriminates against speech based on content and viewpoint," they said. "The District Court nonetheless declared the PTO’s action exempt from any First Amendment scrutiny because registered trademarks are all “government speech” and registration is a government subsidy 'program."

The team called it an "astounding" notion that two million government-registered trademarks would be considered government speech.

It pointed out that the PTO had registered, and not invalidated, hundreds, perhaps thousands, of market the team thinks are racist, misogynistic, or offensive, including Take Yo Panties Off clothing, Dumb Blonde beer, Dago Swagg clothing, and Thug Porn.

"None of this is government speech," the team told the court. "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."

The PTO cancellation does not mean the Redskins can't use the mark--a point the district court made--but it does mean the Feds will not protect it from infringement and knock-offs, a point the team made to the court.

"The government cannot turn the lights off at a Redskins night game because the government disfavors the name, and defend the action because the Redskins can still play in the dark. Registration confers indispensable legal protections, and the government cannot condition those protections on a trademark-owner’s agreement to forgo disfavored speech."

Public interest law professor John Banzhaf, who challenged radio and TV station licenses--including of team owner Dan Snyder--over their use of "Redskins" on-air, called the filing "both a recognition of the paucity of their legal position, and a long overdue admission that the mark does not honor Native Americans."

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.