Washington’s football team has been called the Redskins since 1933, and that team name has been a registered trademark since 1967. Nevertheless, last year, the Patent and Trademark Office (PTO) cancelled the Redskins’ trademarks on the basis that a “substantial composite” of Native Americans found the team name “disparaging” when those trademarks were first registered. The team challenged the cancellation on the ground that it was based on the content of the marks’ expression, in violation of the First Amendment.
The federal district court in Virginia held that the First Amendment is irrelevant here because the Redskins remained free to use their name and marks without registration and, in any event, trademarks are government speech and the government can decide how it wants to speak. The Redskins have appealed that decision to the Richmond-based U.S. Court of Appeals for the Fourth Circuit—read their entertaining brief—and Cato has filed a brief supporting the team.
Although the line between core political speech and commercial speech may at times be difficult to draw, both are entitled to First Amendment protection and, in any event, trademarks are used for more than commercial transaction. Furthermore, registration offers substantial rights and benefits to trademark owners—such as the right to license and to sue for misappropriation—which the government can’t deny simply because it doesn’t like the mark. And trademarks, among other types of intellectual property, don’t constitute government speech.
The lower court relied on the Supreme Court’s recent decision in Walker v. Texas Division (the Confederate flag license-plate case), but trademarks don’t satisfy Walker’s new test for government speech: (1) the government has not traditionally used trademarks to communicate messages, (2) nor has trademark registration historically been restricted to speech with which the government agrees, (3) nor do observers understand trademarks to be the speech of the government, (4) nor does the government maintain control over trademarks upon registration. Instead, the Lanham Act—the federal trademark statute—establishes a generally available regime allowing the expression of a variety of viewpoints. Because such expression is constitutionally protected, the Lanham Act’s registration process is subject to First Amendment review, which dooms the law’s “disparagement” bar.
Indeed, the PTO’s record reveals confusion, bordering on incoherence, from the highly subjective application of disparagement standards built on shifting attitudes. For instance, the office has registered a number of trademarks involving the words “dyke” and “fag” (our brief has many more colorful examples) but also at times denied registration for designations using those words.
Moreover, the disparagement bar enshrines the heckler’s veto. As the Supreme Court said in Texas v. Johnson (the 1989 flag-burning case), “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Although there are categories of speech unprotected by the First Amendment—such as defamation or incitement of violence—disparaging speech is not one of them and courts do not have “freewheeling authority to declare new categories of speech outside the scope of the First Amendment.” The Lanham Act’s disparagement bar is content-based because it cannot be “justified without reference to the content of the regulated speech.”
Even worse, the bar compels viewpoint discrimination—a particularly pernicious form of censorship—by allowing positive references to a group or idea but not (arguably) negative ones. Even if trademarks were considered purely commercial speech, which enjoys less constitutional protection under current doctrine, the disparagement bar would fail because the government has no substantial interest unrelated to the suppression of speech.
For more on the case, which is formally called Pro-Football, Inc. v. Blackhorse, see my USA Today op-ed and Federalist Society podcast.