Federal Government Ends Effort To Strip Redskins Of Their Trademarks
The Federal Government is taking steps to drop its challenge to the trademarks owned by the Washington Redskins in the wake of a Supreme Court decision that found the Federal law barring ‘offensive’ trademarks unconstitutional:
The Trump administration is throwing in the towel in the fight to strip the Washington Redskins football team of its trademarks.
The Justice Department sent a letter to a federal appeals court Wednesday afternoon conceding that a Supreme Court decision last week in favor of an Asian-American band calling itself “The Slants” means that the NFL’s Redskins will prevail in the battle over efforts to cancel the team’s trademarks on the grounds that the name is disparaging to Native Americans.
“The Supreme Court’s decision in Matal v. Tam [the Slants’ case] controls the disposition of this case,” Justice Department Civil Division attorney Mark Freeman wrote in the letter to the Richmond-based 4th Circuit Court of Appeals. “Consistent with Tam, the Court should reverse the judgment of the district court and remand the case with instructions to enter judgment in favor of Pro-Football.”
On June 19, the Supreme Court ruled, 8-0, in favor of the Slants’ front man Simon Tam. He sued after the U.S. Patent and Trademark Office refused to register the band’s name. Patent and Trademark officials cited a legal provision that bans trademarks that “disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”
Tam maintained there was no such intent in the use of the name, but the government said that didn’t matter.
Soon after the high court ruling last week, a lawyer for the Redskins said the decision meant sure victory for the team in the legal dispute.
The fact that the Federal Government would take this position is hardly surprising, of course. While the Supreme Court’s decision earlier this month in Matal v. Tam didn’t directly discuss the issues raised in the case dealing with the Redskins trademarks, the actions that the Patent and Trademark Office took were based on the same provisions of the Trademark Law that were used to deny a trademark to The Slants, the complaining parties in Matal. The fact that the Court found that it was unconstitutional for the office to deny the band a trademark because their proposed trademark was allegedly offensive made it was similarly unconstitutional for that office to strip the Redskins of trademarks that they had been granted more than sixty years ago. There really was no good faith basis for the attorneys for the Federal Government to argue that the Supreme Court’s decision should not apply in this case, and there was the potential that they could have been sanctioned by the Court if they had tried to pursue the case any further.
This action effectively brings an end to the latest effort to force the Redskins to change their name, and may mark the end of the effort entirely. The latest chapter in this long-running saga began when a group claiming to speak for Native Americans was successful in arguing to the Patent and Trademark Office that decision to issue trademarks to the Redskins back in the early 1960s violated the bar against issuing protection to marks that are disparaging on the basis or race, ethnicity or other criteria. To say the very least, that action was legally dubious given Supreme Court precedent on the issue of content-based regulation of so-called “offensive” speech. The PTO ruling, however, was upheld by a Federal District Court Judge who relied to heavily on a 2015 opinion from the Supreme Court that found that states could decline to allow certain messages to appear on license plates based on content because the license plate was a form of what that decision called ‘governmental speech,” in which the government had discretion in what messages it would promote and which ones it would not. As Eugene Volokh noted at the time, though, the argument that granting trademark protection was “governmental speech” in the same way that a license plate on an automobile was held to be is rather weak to begin with, and falls apart largely because the government doesn’t really have any authority over a trademark after the grant of protection whereas the license plate remains, at least in some theoretical sense, government property that must be turned over to the state when a car is sold or otherwise disposed of by the owner.
The Government’s concession in the Redskins case likely means that it will be disposed of promptly. As suggested by the parties, the Fourth Circuit will likely remand the case to the District Court with instructions to dispose of the case accordingly in light of the Supeme Court’s decision. This, of course, would mean a summary dismissal of the Patent and Trademark Office’s ruling and judgment in favor of the Redskins. From the beginning the legal strategy of the Native American group that brought the Complaint to the PTO hoping that a favorable ruling would put economic pressure on the Redskins to change their name. With that road now foreclosed, they’re back to square one and the team is unlikely to change their name, especially since surveys of the American public as a whole and Native Americans in particular show overwhelming support for the team keeping its name. Perhaps someday that name change will come, but it will come about at a time that team ownership, whether that is Dan Snyder or someone else, determines it to be in the team’s best interest, not as a result of a publicity campaign by a group that doesn’t appear to repreent even the opinion of most Native Americans.
Here’s a copy of the Dept. of Justice Letter to the Fourth Circuit: