July 09, 2015

Name Change to Washington Rednecks After Court Loss

by Guest Blogger

No, not really. I couldn't resist that title though.

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We've actually blogged about the mess with the Washington Team Formerly Registered As ("f/r/a") the Redskins far too many times -- but they won't stay out of the news --so here goes again. The short version is that several Native Americans petitioned the United States Patent and Trademark Office last year to have the Redskins' federal trademarks cancelled because the trademarks were disparaging, and they succeeded. The f/r/a Redskins then had two appeal options from that loss. Under 15 U.S.C. 1071, the registrant can appeal to the Court of Appeals for the Federal Circuit or turn around and sue the parties that cancelled the registrations in a Civil Action in Federal District Court. The f/r/a Redskins decided to sue the Native Americans because this allowed them to bring in additional claims that would not have been allowed on appeal.

They sued for the following rulings:

REDSKINS is not disparaging.

REDSKINS does not cause disrepute or contempt.

the trademark act violates the team's right to free speech .

section 2(a) of the trademark act is void because "disparaging" is vague.

the cancellation of REDSKINS violated the team's right to due process.

the cancellation of REDSKINS amounted to a governmental taking of property.

that the trademarks had been around too long for people to complain anymore.

The District Court held (these are the highlights anyway):

REDSKINS is disparaging as evidenced by dictionary evidence, literary, scholarly, and media references, and statements from affected individuals.

Same as previous.

first amendment doesn't apply, and trademark registration is government speech, so free speech doesn't apply.

the trademark act isn't really vague, it gives fair warning of what is impermissible, and doesn't encourage discriminatory enforcement.

due process is not violated because a trademark registration is not considered property under the 5th amendment.

cancellation is not a property taking because a trademark registration is not considered property under the 5th amendment.

this type of claim can't be barred by laches because it is a question of public interest.

It'll be appealed, but the f/r/a Redskins are now 2-0.

John Oliver had this to say about the topic last year (Warning: F bomb toward the end):