Redskins fumble again in trademark dispute

Blog Post
After the Washington Redskins’ attempt last year to overturn the unfavorable TTAB ruling that cancelled the team’s trademark registrations for being disparaging to Native Americans, the team has met yet another defeat. Yesterday, the U.S. District Court for the Eastern District of Virginia issued its appeal decision, affirming the TTAB ruling and again ordering the cancellation of the “REDSKINS” registrations.

In a 70-page opinion addressing the parties’ cross-motions for summary judgment, Judge Gerald Bruce Lee rejected the team’s argument that Section 2(a) of the Lanham Act – which prohibits the registration of disparaging marks – violates the First Amendment and the team’s right to free speech. Judge Lee explained that cancellation of the team’s trademark registrations does not implicate any first amendment rights because the cancellations do not prohibit the team from using the marks, only from registering the marks.

The team also argued that the federal trademark registration program imposes a restriction on private speech, however, Judge Lee again disagreed, stating, “The federal trademark registration program is ‘government speech’ and is thus exempt from First Amendment scrutiny.” The government has the ability to determine the contents and limits of its own programs, he added.

To determine whether the “REDSKINS” marks were disparaging at the time each of the challenged registrations issued, Judge Lee looked at evidence in the form of dictionary definitions, scholarly, literary, and media references, as well as the statements of Native American individuals or group leaders. After weighing this evidence, he concluded, “The Redskins Marks consisted of matter that ‘may disparage’ a substantial composite of Native Americans during the relevant time period, 1967-1990, and must be cancelled.”

Bruce Allen, President of the Washington Redskins released a statement Wednesday afternoon suggesting that the team did not receive a fair trial, stating:

“I am surprised by the judge's decision to prevent us from presenting our evidence in an open trial. We look forward to winning on appeal after a fair and impartial review of the case. We are convinced that we will win because the facts and the law are on the side of our franchise that has proudly used the name Redskins for more than 80 years.”

It appears that the team is not yet ready to throw in the towel. Stay tuned.

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