Without 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 Now millions have been spent but the case is withdrawn in light of the recent decision in Matal v. Tam.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.