The Redskins lost a major challenge this week to the cancellation of the their trademark protection by the Patent and Trademark Office. I have previously written about my disagreement with the U.S. Patent and Trademark Office decision to rescind federal trademark protections for the Redskins as a racially disparaging name as well as the underlying law used to strip the team of its trademark protection. The law allows for a small administrative office to effectively dictate the outcome of a long simmering societal debate over the team name. More importantly, the standard for determining what names or words are disparaging remains dangerously undefined with striking contradictions as we have previously discussed in permitted and disallowed trademarks.
I have long criticized the rise of a “fourth branch” within our tripartite system. Agencies have gradually assumed greater authority and independence in the governance of the country, including the resolution of political and social issues like the debate over team names. With the help of a series of Supreme Court decisions, agencies now enjoy sweeping deference in their enforcement of federal laws. Adding to this dominance are judicial rulings giving agencies heavy deference in their interpretations of laws under cases like Chevron.
The decision of Judge Gerald Bruce Lee affirms the earlier finding by an administrative appeal board that the Redskins name should be stripped of protection. In his 70-page decision, Lee adopts the approach of the Federal and Fifth Circuits that the denial of trademark registration is not by definition a denial of free speech since “no expression is suppressed.” The court rejected arguments that the decision effectively chills or curtails speech through such a significant regulatory act.
It is an interesting and well-written decision that will now be appealed by the team. The main problem is Section 2(a) of the Lantham Act, which I have previously criticized as poorly crafted and ill-defined. Whether a name “may disparage” a group is an absurdly broad concept, particularly when such actions can be brought by a small minority of individuals within that group. While the courts will not consider this ruling, Congress should take up the underlying statutory standard in my view.
Here is the decision: Redskins-decision