A federal government decision to cancel the Washington Redskins’ trademark because it may be disparaging infringes on free-speech rights and unfairly singles the team out, lawyers argued in court papers filed Monday.
The team wants to overturn a decision last year by the Trademark Trial and Appeal Board to cancel the Redskins’ trademark on the grounds that it may be offensive to Native Americans. But the team’s attorneys say the law barring registration of disparaging trademarks is unconstitutional under the First Amendment.
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The trademark board’s decision unfairly singles out the Redskins "for disfavored treatment based solely on the content of its protected speech, interfering with the ongoing public discourse over the Redskins’ name by choosing sides and cutting off the debate. This the U.S. Constitution does not tolerate," the lawyers write in their brief.
The lawyers argue that the government has no business deciding that a name such as Redskins is disparaging and undeserving of trademark protection while deeming other names such as Braves to be content-neutral and allowable for trademarks.
The team still disputes that Redskins is a disparaging term and has asked the judge to rule in the team’s favor based on that argument. But the court papers filed Monday focus on the constitutionality of the law that bans registration of disparaging trademarks.
The government has intervened in the civil lawsuit to defend the law’s constitutionality. In similar cases, government lawyers have argued that the law doesn’t ban disparaging speech; it just denies the protection of a federal trademark to those words. For instance, the Redskins would not be prohibited from calling themselves the Redskins just because they lose the trademark case — they would just lose some of the legal protections that go along with a registered trademark.
The team says free-speech protections should be understood more broadly. The team says the First Amendment can be violated by government restrictions that burden speech even if they don’t ban it outright. The team argues that canceling a trademark represents such a burden, especially for a football club that has used the name since 1933.
A lawyer for the group of Native Americans that sought cancellation of the trademark did not return a call seeking comment Tuesday.
The team also argues that canceling the trademark after decades of lawful registration amounts due a denial of due process because of the difficulty in trying to defend itself so many years after the fact.