Federal Court Upholds Decision Stripping Redskins Of Trademark Protection

350px-Washington_Redskins_logo.svgThe 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.

ph_leeThe 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

47 thoughts on “Federal Court Upholds Decision Stripping Redskins Of Trademark Protection”

  1. Olly: your analogy does not hold up. A copyright on a Broadway musical is not the same as a registered trademark on a phrase or word. A copyright is not invalid for being racist or offensive. However, no one has a trademark registered on the word “Oklahoma.” No one claims the exclusive commercial use of the word “Oklahoma.” All that the decision does is remove from Dan Snyder and the Washington football team the ability to sue others in federal court for infringement for using the word “Redskins” in the context of football and sports.

    As to whether the word is offensive, I refer you to the Onion (one of my favorite sources), which headlined an article: Redskins Is Only Offensive If Thought About For More Than Two Seconds. They also had an appropriate headline about Dan Snyder’s ethnicity which I will not repeat here.

  2. The stupidity of this decision is that now there will be more logos and stuff out there due to the lack of control of the copy right laws. There are far, far, far, more important issues. The only people who have a say are the Indians.

  3. A lot of the couch potatoes who watch their games would be able to relate to that.

  4. The Washington Redskins could keep the name if they just replaced the Indian logo with a Redskin potatoe.

  5. Professor Turley says, “I have long criticized the rise of a “fourth branch” within our Tripartate System”, i.e., the Administrative State.

    Surely you jest, Professor. You are a fan of Obamacare, which is the Administrative State on steroids.

  6. Not having a trademark on the name doesn’t mean they would have to stop using it. It would mean they wouldn’t be able to prosecute someone for selling unauthorized products with the team’s trademarks on them. If stripped of the trademark rights, they will simply lose some profits from the sale of merchandise, which, they wouldn’t be prevented from selling themselves either.

    Just because the team wouldn’t have a national trademark doesn’t mean they couldn’t get 50 state trademarks. If they got state trademarks, they could then prosecute unauthorized sales of their trademarked products in as many states as they had acquired the trademarks. It’s all about money as much as it is about a team’s identity.

    Personally, I think they should change the name of the team to the Washington Foreskins. That city is full of nothing but big dick heads, anyway. And if people think their logo is offensive now, imagine the uproar over a graphic logo for that name. That male appendage naturally looks like it is wearing a football helmet, so what’s the problem?

  7. Olly

    I am progressive and I do not support this decision. The case is never closed except for the narrow minded.

    Russ

    Rule of law versus rule of man, there is no difference. Man makes the laws, changes the laws, breaks the laws, bends the laws, etc. Neither a conservative nor a liberal is any different this way. Sometimes grey is argued as black and sometimes as white.

    Robert

    It has yet to be established if the name is offensive. Some of the original settlers in North America like being called Indians. Some don’t. It’s the same as Blacks and African Americans. Some Blacks still see themselves as black and beautiful. Some have to take it back to a place that never existed for them. If you recently immigrated from Africa or your parents did then you might be African American as Spinelli is Italian American. I sure as h*ll don’t go around labeling people Irish American, Spanish American, French American, etc. They’re Blacks and I’m a White. Or, I could be Ukranian-Scottish-Canadian-American-with a touch of the French. Our son is Ukranian-Scottish-Canadian-Colombian-American- with just a hint of the French. The bigger the label the less the content. So, I’m just me a White mutt. A Redskin could be negative or positive. It depends on how it’s used. I think the football team uses it as a sign of power, a sign of respect. So, this is a stupid decision.

    If the International Brother/Sisterhood of Indians put together a majority vote on taking the name down then perhaps that would be somewhere to start. So far it’s only extremists.

  8. I watched it the other day. Changing the Redskins name and calling it racist, will sure tip the hat of sports fans. I wonder what the American Indians think of that. They might be offended that’s it’s being changed. They might think of the name as an honor. I do.

  9. I’m with you Olly. This PC crap has OD’d in my opinion and will also bring out the evangelical vote, for sure! The will of the people have been literally ignored by these activists judges. There’s a whole lot of anger out there.

  10. Robert,
    Should Richard Rodgers and Oscar Hammerstein II lose all rights to their musical “Oklahoma” as the name literally translates to “Red People”? How about the state of Oklahoma, should they be required to change their name?

    1. Olly – Oklahoma has never paid Oscar and Hammerstein for the free publicity they get every time the show is done or some sees the movie or the song “Oklahoma” is sung.

  11. On a related note:

    Arianna Grande blurting out, “What the f–k is that? I hate Americans. I hate America.”

    Let’s parse this (after we vote to take down the Mexican flag). She said American and meant “white” people. According to Grande, American means “white” people. So there you have it. When minorities use the “W”-Word, they are denigrating Americans. “White” is as derisive and insulting as the n-word is to African-Americans (notice, they are not Americans, they are African-Americans).

    Is this racist? Is Grande a racist? Of course, she can’t be. She’s not an evil “white” person.

    Is this a “hate crime?”

    Who is kidding whom? Who is fooled by this double standard?

    Obama’s conversation on race can begin with the admission by “abused minorities” that they are just as racist as everybody else; racists who come to America, proclaim being abused and demand their “free stuff.”

    Americans are evil so give me all your “free stuff” – let’s start with affirmative action – free school; free jobs.

    Liberals are good people and they aren’t racists.

    How many minorities will move onto your block before you move out; 25%, 75%, 90%? Take a look down the street. How many are there now?

    Who’s kidding whom?

    *********************

    Article:

    “California police said Wednesday they are investigating a video that appears to show pop superstar Ariana Grande licking doughnuts.

    Police in Lake Elsinore, where the donut shop is located, say they and Riverside County public health officials were investigating the leaked video, which appears to show the 22-year-old and a man with her “maliciously lick” the doughnuts on top of a counter.

    Mayra Solis, 22, a cashier at Wolfee Donuts who was on duty when Grande went into the store, said the singer didn’t purchase any of the doughnuts she appears to lick.

    “She was really rude,” Solis told The Associated Press.

    Sheriff’s Deputy Michael Vasquez told the Los Angeles Times, they don’t believe a crime was committed, so Grande may not be investigated.

    In the same video, which was posted by TMZ on Tuesday, also shows Grande blurting out “What the f–k is that? I hate Americans. I hate America.”

  12. Stop whining. This is a case of a billionaire and his professional football team corporation that has been using the power of big government to claim exclusive commercial use of a phrase: Redskins — that is patently offensive. This decision merely removes the government granted monopoly over the use of the phrase (state laws may apply too, and are not affected by this litigation). The law is clear that the government granted monopoly may not be given to an offensive phrase. The administrative agency makes the initial determination of whether the phrase is offensive, which is subject to appeal to the federal courts. What further due process do you want?

    1. Independent Bob – you raise an interesting point. How about an international trademark for the Washington Redskins.

  13. stevegroen said …

    Not that I want to initiate a race war here, but BET has always struck me as offensive, and I wonder how Judge Gerald Bruce Lee would resolve a challenge to Black Entertainment Television, LLC’s protected trademark? Are we creating exceptions as moral reparations?

    Olly said …

    Will the state of Oklahoma be required to change its name since it translates as “Red People”?

    Almost “asked and answered.”

    I wonder if we have not gone collectively nuts? Our obsession with “color” is weird. We’ve got a POTUS who was raised white as snow and yet claims his “black” heritage, and all of its tribulations, with a nonsense book,…so somehow I am confused. What happened to “we the people?”

    1. Aridog: “I wonder if we have not gone collectively nuts? Our obsession with “color” is weird. We’ve got a POTUS who was raised white as snow and yet claims his “black” heritage, and all of its tribulations, with a nonsense book,…so somehow I am confused. What happened to “we the people?”

      Congress can conduct social engineering through the Commerce Clause and the Taxing and Spending Clause, but I don’t know that a federal agency can do so without specific legislation (e.g., the Internal Revenue Code), especially inconsistently, as I tried to bring home with the Black Entertainment Television, LLC, trademark approval and its renewal. Added to that, law enforcement regularly – as a matter of policy – identifies everyone by race. (Oh, but that’s different because they couldn’t do their job without it? Have they ever tried?)

      Have you ever sat through the federal firearms background check before purchasing a firearm, wherein Latinos are especially humiliated, depending on their origin?

      Jeb Bush was raised redneck and even he’s checked the Latino box when it works in his favor.

      And you wonder what happened to We, the People? They’re too decent for this fascist state. They’re like the three men I admire most. They caught the last train for the coast.

  14. Well, it doesn’t go into effect until all appeals are exhausted, so I cannot crank up my t-shirt machine.

  15. The real danger is you have a “government” entity violating the First Amendment (which was designed to restrain government entities).

    Previously, movie and TV ratings gave that power of censorship to the adult parent (citizen) or a non-governmental corporation (TV network, movie studio, etc) not an unelected bureaucrat in a government agency. This opens a huge can of worms for more government censorship in the future.

  16. The team ought to chose a few Indian tribes whose names are appealing such as Sioux or Iraq. Then go to the tribal council and buy the rights to the name. Then buy the right to the copyrighted names owned by the tribe. The tribe could copyright Sioux Redskins. Nuff said. Easily done.

  17. The executive branch functions outside the law.

    The judicial branch imposes “homosexual dominion” and the oxymoronic contradiction in terms, “homosexual marriage,” and nationalizes healthcare outside the law.

    Boehner is drinking fine wine at the country club.

    Bureaucrats rule over their lucrative fiefdoms.

    America is well in hand.

    Corruption prevails.

    America doesn’t require direct suppression as implemented in North Korea where the government has killed

    70 officials for perceived “disloyalty.”

    America has been “fundamentally transformed” passively.

    “You couldn’t keep it.” Ben Franklin.

    “May you live in interesting times.”

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