- The Washington Times - Tuesday, March 24, 2015

The Washington Redskins’ name is commercial speech and isn’t the kind of free expression protected by the First Amendment, the Obama administration told a federal court this week in defending a ruling that has stripped the football team of trademark protections.

The team’s name itself is not at stake, but if the trademark is canceled, the name becomes less valuable because the owners would struggle to enforce their trademark against anyone who wanted to use the name or Indian logo on their own merchandise.

In a filing Monday, the Justice Department defended the Trademark Trial and Appeal Board’s decision last year to strip the team of protections.

“Not only do trademarks function only minimally as a vehicle for expression, but trademark registration also involves the necessary participation of the government in approving that registration, which confers relaxed First Amendment review even when combined with the speech of a private party,” the Obama lawyers said.

Trademark law says disparaging marks cannot be granted protections, and the government argues that the name has become disparaging over the last century. The trademark board, in its 2-1 ruling, also cited polling suggesting a significant percentage of American Indians consider the name a slur.

Pro-Football Inc., the company that operates the team, argues a previous court ruling has already held the trademark wasn’t disparaging.

Craig C. Reilly, a lawyer for the team, has also argued in court that stripping the trademark amounts to taking the team’s property, which cannot be done without compensation. Mr. Reilly also vowed that even if it loses its federal trademark, the team will still try to enforce its claims against anyone trying to use the name or logo.

Reached Tuesday, Mr. Reilly had no comment on government’s latest filing.

Justice Department lawyers said Mr. Reilly was wrong in arguing there is a property interest in a trademark, and said the law always gives the government power to cancel trademarks that violate the rules, and said all the proper procedures were followed at the trademark board.

The American Civil Liberties Union has filed a brief backing the football team in court, saying that it’s exactly because a trademark can carry a viewpoint — and be offensive to some for that viewpoint — that it deserves First Amendment protections.

ACLU lawyers said they find the name racist and have asked the team to change it, but said that doesn’t give the government the power to compel a change or to impose a financial burden if the team refuses.

“It is simply not within the government’s authority to determine what speech is too ‘scandalous’ to merit trademark protection,” the ACLU said.

The Washington Times reported last year that the Patent Office hadn’t received a single complaint about the team name at the time it ruled the trademark disparaging.

In fact, despite an at-times heated conversation on sports-talk radio and decisions by several media outlets not to use the nickname, instead saying “the Washington football team” or similar phrasings, there was no correspondence from the public to the trademark board in the run-up to its decision last year.


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