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Federal Government Ends Effort To Strip Redskins Of Their Trademarks

Washington Redskins Helmet

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:

DoJ Letter to Court on Redskins Case by Doug Mataconis on Scribd

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. JKB says:

    After nearly a decade of running rough-shod over it, federal bureaucrats and lawyers discover that damn Constitution isn’t dead yet. Not for the lack of the lower court judges trying.

    Like or Dislike: Thumb up 5 Thumb down 3

  2. grumpy realist says:

    Not surprising. SCOTUS basically shot the legs out from under the government side.

    I wonder how many vulgar epithets have been applied for as trademarks by now? Of course, the USPTO might be able to fob off the wave by claiming Lack of Distinctiveness and forcing them on to the Supplemental Register…..

    (And speaking of vulgar, has anyone heard about the latest set of tweets from our lovely president? )

    Like or Dislike: Thumb up 1 Thumb down 0

  3. grumpy realist says:

    @JKB: I suggest you read the history of this case and what is in the Lanham Act before commenting so foolishly. This wasn’t a case of “nasty liberal court overriding the Constitution.”

    But given the example presented us by President Trump, it seems that vulgarity doesn’t present a problem to him or his supporters.

    Like or Dislike: Thumb up 1 Thumb down 3

  4. James Pearce says:

    @grumpy realist:

    (And speaking of vulgar, has anyone heard about the latest set of tweets from our lovely president? )

    Of course we heard about these tweets. They’re trying to pass a big, inadequate healthcare bill on a party line vote.

    So expect weird tweets as you would expect smoke and mirrors at a Criss Angel show, and for the same reasons.

    Ignore the tweets. There’s the ball….let’s put our eye on it.

    Like or Dislike: Thumb up 0 Thumb down 0

  5. Tyrell says:

    “fight for old D.C.”

    Like or Dislike: Thumb up 1 Thumb down 2

  6. t says:

    i’m a lifelong skins fan and i’ve given dan snyder more of my money than i’d like to admit…

    they should change the name.

    Like or Dislike: Thumb up 1 Thumb down 0

  7. Tyrell says:

    @t: I certainly hope that they have a great season and finally get to the Super Bowl. Snyder needs to quit messing up. When I hear the Redskins song it brings back so many great and emotional memories -Taylor, Hamburger, Jurgenson, Kilmer, Huff, Higgins, Lombardi, Allen, Green, Theisman, Williams, Gibbs: legends, a virtual trip into the Hall of Fame.
    “Hail Victory !”

    Like or Dislike: Thumb up 1 Thumb down 0

  8. de stijl says:

    @Tyrell:

    Your misty colored memories do not negate the fact that “Redskins” is a racial slur.

    Like or Dislike: Thumb up 1 Thumb down 1

  9. de stijl says:

    @James Pearce:

    I, myself, can keep my eye on more than one thing.

    And we, as Americans, can understand that Trump can be predictably misogynistic and the Senate Republicans can befoul healthcare and screw the poor in favor of the rich at the same time. Even during the same day.

    Attacking on multiple fronts is perfectly cromulent.

    Like or Dislike: Thumb up 0 Thumb down 0

  10. de stijl says:

    @James Pearce:

    They are not going to pass anything since the Senate has adjourned.

    In fact, it may have been that McConnell used the tweet as the distraction to get any attention off the massive failure of his party to produce any legislation that could pass.

    You assume that Republicans are competent in drafting legislation that can / will pass. They are demonstrably incapable of simply counting votes or the basics of whipping votes.

    As legislators, they have no experience in proposing passable legislation. Eight years reduced one party to utter innefectuality by simply stressing obstruction.

    In the unimpeded majority, they are literally clueless as to how to produce passable legislation.

    They are currently a cargo cult. They execute the same behaviors, but the big green bird does not come no matter how hard they manipulate the levers. McConnell is a proven master at obstruction and an utter failure at legislation.

    His caucus will not him allow him to succeed.

    Like or Dislike: Thumb up 0 Thumb down 1

  11. bill says:

    losing, that’s all!
    most people with a 3 digit iq figured as much last time the crying bitches started this shit again.
    hell, they couldn’t believe that most real “redskins” didn’t give a shit either!
    sjw’s lose again…….but they never learn.

    Like or Dislike: Thumb up 0 Thumb down 0