Sacked: Justice Department Drops Fight To Strip Redskins of Trademark Protections

350px-Washington_Redskins_logo.svgWithout fanfare, the Justice Department dropped the long fight over stripping the trademark protections from the Washington Redskins football team as an offensive term.  I have long been a critic of the action taken by the U.S. Patent and Trademark Office and said at the time that the action was flagrantly unconstitutional.  Now millions have been spent but the case is withdrawn in light of the recent decision in Matal v. Tam.

 

Justice Department lawyer Mark Freeman wrote to the Fourth Circuit to acknowledge that the underlying legal dispute is now resolved: “Consistent with Tam, the Court should reverse the judgment of the district court and remand the case with instructions to enter judgment in favor of Pro-Football.”

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 predicted, the ruling answered  the question raised in the prior column in controversies like the denying of trademark protection to the Washington Redskins. in favor of an Asian-American band calling itself the Slants means the NFL team will prevail in a legal battle to cancel the team’s trademarks because the name is disparaging to Native Americans.

 

It is worrisome however that Congress never acted to prevent this abuse of trademark and patent laws.  Likewise, as I have previously written, nothing has been done to address how this Court went to such extraordinary lengths to insert itself into a long simmering social and political debate.

It will be interesting if the end of this litigation will impact the move by people in the NFL and football coverage to avoid using the name as opposed to “Washington.”  There still remains a legitimate social debate over the name and whether it is offensive to Native Americans. While many Native Americans are not insulted, it clearly is offensive to many Native Americans and non-Native Americans. That debate can now go forward without the intervention of bureaucrats in declaring the matter resolved.  The team still faces potential social and market pressures from the national campaign to change the name of the team.

20 thoughts on “Sacked: Justice Department Drops Fight To Strip Redskins of Trademark Protections

  1. Americans that want to continue to live in a nation with maximum individual freedoms – must also respect the freedoms of those we disagree with and those we are even offended by.

    As long as one person’s freedoms aren’t infringing on another person’s constitutional rights, we should at least tolerate it.

  2. I don’t know of anyone, including American Indians that I know, who object to “Redskins”.

    Maybe we all have more serious things to do here…

  3. Although “spent” is technically correct, a more accurate term is wasted. The plaintiffs should be forced to pay all costs associated with their suit. If that doesn’t happen, they will have gotten a free ride, and we the people will pay for their super-sensitivity. By the way, if the plaintiffs merely walk away to regroup for their next attack, I plan to organize people who, like me, will bring a suit to stop all commercial uses of white, anglo (regional), and caucasian to refer to me. I’m none of those things–and government forcing me to live under them is oppressive. Also, I’m sure that’s what has prevented me from earning a seven-figure salary throughout my entire work life. Anyone here care to join me?

  4. Everybody needs to grow thicker skin. When did we become a nation full of wimps and pu$$ies?

    The Founding Fathers would cringe over what occurs in the supposedly limited federal government they desired to establish.

  5. The ruling by the U.S. Supreme Court, that even trademarks which are racially disparaging are protected by the First Amendment, and therefore such trademarks are entitled to federal registration, almost certainly dooms a legal action by Native Americans to cancel several “R*dsk*n” trademarks.

    However, the ruling does not necessarily shield radio and TV broadcasters from legal attacks based upon their repeated and unnecessary use of what many Native Americans refer to as the “R-word” – which they maintain is as racially disparaging to them as the “N-word” is for African Americans – because the Supreme Court has ruled the Federal Communications Commission [FCC] can punish broadcasters which use language which in other situations would be protected by the First Amendment, says public interest law professor John Banzhaf.

    Banzhaf has led the movement to use broadcast law as a weapon against the continued use by radio and TV stations of the word “R*dskins” – which many American Indians, and even some legal rulings, have characterized as a very harmful racist slur – because broadcasters are required to operate in the public interest in order to retain their valuable public license. The ability to use a name to refer to yourself or your group is very different from the exclusive right to operate a station on a given frequency.

    For example, the Supreme Court has repeatedly said that the FCC may regulate the use of various expletives, including the word “f*ck,” but upheld the right of a man to wear a jacket in public in a courthouse which read “F*ck the Draft.” Even when the issue very recently became the extent to which the FCC can regulate what it calls “fleeting expletives” – rude words used only once, and in a completely non-sexual context – the Supreme Court has not undercut this power.

    An initial challenge to “r*dsk*ns” upon this ground was rejected by the staff of the FCC, in part because it was not filed in a timely fashion. Moreover, any decision limiting broadcaster use of the name of the popular football team would almost certainly have to be made by the FCC’s commissioners, not just by the staff. The Commission has not yet ruled on this issue.

    In the Supreme Court case, musicians of Asian heritage decided to name their music group the “Slants,” ordinarily a disparaging word. However, many would probably agree that it is much less derogatory when the group which voluntarily adopted it is the very group allegedly being disparaged.

    However, the name “R*dsk*in” was not adopted by Native Americans, and it has been found to be a racially disparaging slur by virtually every Native American organization.

    Even so, one wonders whether the FCC would let a group of African American musicians which named itself the “N*gg*rs” be referred to by that name on the air. Interestingly, broadcasters usually refrained from using the proper name “Niggas With Attitude” by its full name, instead saying NWA.

  6. It was a dumb lawsuit. No “team” should own the rights to the use of a common generic word. Next someone will want to own The Negro League.

  7. Off topic but SOS.
    If you can handle the histeria attempt to read Joy-Ann Reid’s tweets and the amazing lemmings that pile on for validation to the WSJ story about a GOP “operative” who sought Clinton Emails and implied Flynn Connection.These people will not give up. Something has to be there.
    Oh yeah btw,this “operative” just currently happens to be at room temperature.
    https://www.wsj.com/articles/gop-operative-sought-clinton-emails-from-hackers-implied-a-connection-to-flynn-1498770851

    I’m sure Glenn Greenwald will tally the retweets.

    • Is there a statutory basis to recover fees in a successful challenge to a refusal to register a trademark? I’m pretty sure Dan Snyder has too much money to qualify under the Equal Access to Justice Act.

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