November 16, 2015

“Panties Off” Defense to Redskins’ Offense

Just when you thought you’d heard it all: In 2014, you may recall, a federal trademark appeal board cancelled the trademark registration of the Washington, DC, professional football team’s name, the “Redskins,” holding it offensive to Native Americans. The board said the mark is barred by the Lanham Act’s ban on disparaging names that may lead some people to hold others in contempt. In July a federal district court rejected a challenge to the board’s decision, holding that a trademark is “government speech” and so not shielded by the First Amendment. On Friday, October 30, lawyers for the team filed an appeal in the U.S. Court of Appeals for the Fourth Circuit in Richmond, VA. The 82-page brief, which you can read here, covers a lot of legal territory. But the lawyers (and everyone else by now) obviously savored their gotcha moment, even as others mocked. Perhaps you won’t be astonished to learn that the trademark office has granted protection to quite a few other offensive words and phrases, but you may be taken a bit aback to read through a partial list: “Take Yo Panties Off” and “Dago Swagg” for lines of clothing; “Bound Gangbangs” for a pornography purveyor; “” for a website; and “Midget-Man” for condoms. If that’s government speech, what’s it trying to say? No doubt lots more to come from the lawyers and the court. And from everyone else.

Predictably, opponents of the Redskins trademark ridiculed the brief for trying to change the subject, saying, in effect, “the word I hate is still worse than the words you hate,” when the issue pretty evidently is whether the law sets a standard impossible for a government agency to follow. I’m sorta hoping this one goes to the Supreme Court. How will the justices divide on whether “Boys Are Stupid, Throw Rocks at Them” (trademark for a line of wallets) is speech of the government of the United States of America?

November 3, 2015