The appellate brief (PDF) filed in the Fourth Circuit on behalf of Dan Snyder, the owner of the Washington Redskins, is appealing a district court's affirmation of the Patent and Trademark Office's cancellation of Snyder's Redskins trademark. The appeal argues that:
There are extraordinary free speech principles at issue far beyond the
Redskins trademarks. Cancelling a registration based on the government’s disapproval of a trademark discriminates against speech based on content and viewpoint. 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.” [. . .]
A ban on registering “disparaging” trademarks unconstitutionally burdens speech based on content and viewpoint, just as would a ban on registering copyrights for “disparaging” books. [. . .] Registration confers indispensable legal
protections, and the government cannot condition those protections on a
trademark-owner’s agreement to forgo disfavored speech.
The argument on whether a trademark constitutes protected speech is an interesting one. I think it does not—which I will go into in more detail in subsequent post, but short version: The purpose of a trademark is to identify good or services, not make statements about the goods or services. As the Redskins' brief states: "The [federal trademark law] “secure[s] to the owner of the mark the goodwill of his business and … protect[s] the ability of consumers to distinguish among competing producers.” This is not protected speech, in my opinion.
But what I'm actually exploring in this post is the public relations decision to basically assume that the Redskins name is in fact offensive, for argument purposes. Snyder's lawyers state:
“Disparaging” marks prevent consumer confusion and secure to
owners the fruits of their investments every bit as much as non-disparaging marks. [. . . .] The PTO concluded that BLACK TAIL for an adult entertainment magazine does not disparage African-American women, Boswell v. Mavety Media Grp. Ltd., 1999 WL 1040108 (TTAB 1999), that JAP does not disparage Japanese Americans, In re Condas S.A., 1975 WL 20869 (TTAB 1975), and that MOONIES does not disparage the Unification Church, Over our Heads, 1990 WL 354546. PTO examiners have registered OFF-WHITE TRASH, DANGEROUS NEGRO, CELEBRETARDS, STINKY GRINGO, MIDGET-MAN, and YID DISH, and LITTLE INDIAN GIVER, among countless examples. There is no rhyme or reason to the PTO’s approval of some marks and disapproval of others.
Oh my. There's more.
To be sure, lawyers assume the worst for their case all the time in order to persuade a court that even assuming the worst, their side wins. But Snyder and the Redskins have fallen all over themselves insisting that the name is in fact not an offensive one. The approved trademarks listed by the Redskins in their brief certainly sound offensive to me at first blush, but does Dan Snyder REALLY want to concede that his Redskins mark is offensive, like those are?
Because from my vantage point, I'd agree to settle the case for that acknowledgment. Then let Snyder and Roger Goodell defend the use of Redskins.
That sure would be interesting.
.