As part of the team’s never-ending trademark cancellation saga, Washington Redskins legal counsel filed a brief last week in which it rattles off a list of the most scandalous, immoral, and disparaging registered trademarks it could dig up. Bloggers and news sites scrambled to reprint the most salacious examples (SlutSeekers dating services; Dangerous Negro t-shirts), with the sports blog Deadspin deeming it a “mellifluous litany of frat-boy vulgarity” and The Washington Post nicknaming the whole approach the “’Take Yo Panties Off’ defense.”
But the Redskins didn’t talk dirty just to garner headlines or make federal judges blush. Its bawdy brief was part of a calculated strategy to highlight the hypocrisy of allowing some offensive trademarks while refusing others. And the filing actually bolsters the team’s claims that the law itself restricts speech in violation of the First Amendment.
Section Two of the 1946 Trademark Act includes a bar prohibiting registration for marks that the Trademark Office deems scandalous, immoral, or disparaging. The Redskins marks include REDSKINS, WASHINGTON REDSKINS, REDSKINETTES, and two design marks (logos) that feature stereotypical images of Native Americans. The marks have been challenged several times as disparaging and most recently cancelled by a federal court, though the cancellation will not take effect until the Redskins have exhausted the appeals process. While the team disagrees with the determination that its marks disparaged Native Americans at the time they were registered, and has appealed the district court’s holding on that basis and several others, it is also challenging the relevant portion of the Trademark Act as unconstitutional.
Several rationales are typically cited to justify the bar on scandalous and disparaging marks: that the government should discourage the use of offensive marks, protect the members of the public whom they offend, and avoid spending time and resources protecting such marks.
Proponents of the prohibition also argue the government should avoid placing its official imprimatur on offensive marks or creating the appearance of endorsement. If you’re a member of a group harmed by the use of a particular term in a trademark, the harm is theoretically multiplied when the mark is followed by a ® — evidence that a government agency reviewed and approved the offensive mark and rewarded its owner with a shiny certificate. The lower court in the Redskins case asserted that registration constitutes not just government approval, but government speech.
The Redskins’ latest brief seizes on the sheer volume of registered marks, including offensive marks, to undermine that theory. “The notion that all 2 million currently-registered marks are government speech is astounding,” the team claims. “No one today thinks registration reflects government approval. But if this Court holds that it does, how will the government explain registrations like MARIJUANA FOR SALE, CAPITALISM SUCKS DONKEY BALLS … YID DISH, DIRTY WHOOORE CLOTHING COMPANY and … numerous confederate flag logos?”
If trademark registration does serve that function, the team argues, then so must patents and copyrights. Yet no one “think[s] the government’s copyright registration of Randall Kennedy’s Nigger: The Strange Career of a Troublesome Word, E.L. James’ Fifty Shades of Grey, or the song ‘Hail to the Redskins’ reflects government association,” nor does anyone think a particular patent constitutes government speech. And the prospect of a ban on copyright protection for scandalous or offensive art is simply untenable.
In addition to its litany of scandalous marks, the Redskins cite a number of registered marks that contain disparaging terms, including “negro,” “midget,” “retard,” “dago,” “heeb,” “dyke,” “white trash,” “fag,” “squaw,” and “injun.” The team also highlights conflicting precedents in which some marks containing those terms were granted registration while others were denied it.
Since the filing, many have taken to social media to criticize the Redskins’ approach, characterizing the references to sex toy and pornography trademarks as a failed attempt to prove the team’s name is not that bad, even though courts have repeatedly held that it is that bad. They are missing the point. The team lists the offensive marks not for comparison, but as ammunition for its arguments about the law’s unconstitutionality. In confronting the court with inconsistent applications of §2(a), the team demonstrates that the prohibition violates the First Amendment by discriminating based on content and viewpoint, fosters arbitrary enforcement by providing only vague guidance to examining attorneys, and provides inadequate notice to future applicants about the registrability of their own marks.
Those who find the Redskins name and logo offensive can (understandably) get emotional on this issue. It can be difficult to separate feelings about the mark in this case from the legal context and view the First Amendment challenge in isolation. In fact, when the members of Asian dance band The Slants raised the same constitutional challenge in pursuing registration of their own mark (initially refused as disparaging to Asian-Americans) the argument was better received by the public, because the band is a more sympathetic mark owner. As the Redskins complain, §2(a) decisions are necessarily “driven by the subjective personal views” of trademark examiners.
But by highlighting inconsistencies within the trademark regime and across intellectual property law, the Redskins just might manage to salvage their registrations (even if not their reputation).
Alexandra J. Roberts is a professor of intellectual property, trademark, and entertainment law at the University of New Hampshire School of Law.