U.S. Fourth Circuit - The FindLaw 4th Circuit Court of Appeals Opinion Summaries Blog

Washington Redskins Lose Trademark Registrations in Federal Court

The Washington Redskins keep getting tackled in court. The controversially-named NFL team lost another legal battle today when a federal district court ordered the cancellation of their trademark registrations, rejecting their claims that the Lanham Act was overbroad and unconstitutional.

The decision by the E.D. Va. tracked with a previous ruling by the Trademark Trial and Appeal Board, finding that the Redskins trademark violated the Lanham Act's prohibition on registering marks which "may disparage" others or "bring them into contempt or disrepute." So, touchdown for Native American activists who have long criticized the NFL team for using what many consider to be a racial slur as its name.

A Disparaging Name for Over a Century

The Redskins have been so named since 1933 and activists have been campaigning against the name at least since the 1970's, the court notes. That doesn't mean the name was not viewed as offensive or disparaging until the dawning of the political correctness, however. As the court observes, "redskin" was known to be disparaging for decades before D.C.'s NFL team chose it. Webster's Dictionary described the term as "often contemptuous" in 1898, "seventy years prior" to its first trademark registration.

The campaign to cancel the Redskins' registration has been going on for decades. The legal battle began more than 20 years ago, when Native Americans first challenged the registration in 1992. They won seven years later, but were overturned on evidentiary and laches grounds. That left Amanda Blackhorse and other activists to take up the case in 2006, succeeding first before the Trademark Trial and Appeal Board and now in federal court.

A Constitutional Limit on Trademark Registrations

In its decision, the court rejected the Redskin's claim that the Lanham Act violated their First Amendment rights. Trademark registration does not implicate First Amendment rights, the court ruled, since trademark registration is not a protected form of speech or expression. Rather, registration is government speech and exempt from First Amendment scrutiny.

Similarly, the Act is not void for vagueness. Anyone of ordinary intelligence can discern what registrations would be prohibited, the court ruled. Further, since there are no sanctions or criminal penalties attached to a rejected registration, the vagueness standards are especially relaxed.

As the court takes pains to note, its ruling doesn't actually destroy the Redskins trademark. They are allowed to continue to use the name and image, simply without the legal protections of trademark registration.