OFFENSIVE” REDSKINS GO ON THE OFFENSIVE
After searching various sources, we have found many people have questions when it comes to legal matters. The Callagy Law team has written the following blog post to help you better understand the inner workings of the legal system.
What’s in a name? If you are the Washington Redskins – a lot.
The Redskins’ parent company, Pro-Football, Inc., recently filed its opening brief in an appeal to the Fourth Circuit challenging the Eastern District of Virginia’s decision granting summary judgment in favor of five Native Americans who successfully petitioned the Patent and Trademark Office to cancel the Redskins’ trademark.
The filing is the latest in the ongoing saga over the perceived offensiveness of the NFL team’s trademarked name, and it puts into sharp focus how cultural trends, freedom of speech, and commercial law overlap.
The district court held that Section 2(a) of the Lanham Act, which governs trademarks, does not implicate the First Amendment because the cancellation of a trademark does not burden, restrict, or prohibit speech. It also held that registration of a trademark is “government speech,” which is therefore exempt from First Amendment protection. Importantly, the district court further held that the Redskins’ name was “disparaging to a substantial composite” of Native Americans when it was first registered in 1967, as the precedent concerning Section 2(a) of the Lanham Act requires the analysis to focus on the time of registration, not the time of cancellation.
In its brief, Pro-Football, Inc. noted – tongue in cheek – that if trademarks are government speech, then the government has endorsed countless racist, misogynistic, and otherwise grossly offensive speech, including “Take Yo Panties Off” clothing, and others too vulgar to repeat here. But the gravamen of the argument is more metaphysical than playful: the subjective concept of “disparagement” and the vagueness of the term “substantial composite” subjects trademark holders to arbitrary cancellation of often-substantially lucrative legal protection. (Pro-Football, Inc. estimated that the Redskins’ trademark alone was worth $214 million.) According to Pro-Football, Inc., the district court’s decision was an “invitation to 300 million Americans to challenge any mark they disfavor” which would “guarantee[] chaos and unpredictability.”
In a post-Citizens United world the legal definition of speech itself has become controversial. Commercial speech—i.e., any speech intended to convince the listener to enter into a commercial transaction—has generally been treated by the Supreme Court as less valuable than, say, political or artistic speech. This case is particularly important because it pits the growing political and cultural trend of so-called political correctness against a giant of capitalism. It speaks to the law’s role as both the reflection and driver of cultural trends as well as its role as the arbiter of millions of disparate interests, viewpoints, and opinions. It‘s a case that will have far-reaching repercussions for any heavily invested trademark holder.
And it’s all about a name.
Sean Callagy, the owner and President of Callagy Law is an attorney, business coach, public speaker, and entrepreneur; is dedicated to the personal and business growth. Please reach out to us here with any questions or comments regarding personal or business matters. We will to continue to provide daily updates with helpful information on our website and social media. Please feel free to contact Callagy Law at anytime. Feel free to connect with us on Facebook, Twitter or LinkedIn! Additionally you can subscribe to our daily videos on YouTube by clicking here.
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Freedom of Speech vs. Freedom To Not Be Offended | Callagy Law
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