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If someone were to tell you that the term "JIZZ underwear" would be used to argue for the very core of copyright and trademark, you'd think you'd stumbled onto a dirty website, right?
That term, including many other equally racy or offensive trademarks were cited as examples by the Redskin's legal team in their appellate brief filed with the Fourth Circuit. The argument: the 2014 PTO's canceling of six trademarks for the "Washington Redskins" amounts to unequal treatment under the law.
Offensive = Non-Trademarkable ... Really?
Last year, the U.S. Patent and Trademark Office's Trademark Trial and Appeal Board canceled six trademarks owned by the Washington Redskins and ruled that the name "Redskins" is unsuitable for trademark because it was "disparaging to Native Americans," thus triggering federal exceptions for offensive or disparaging language. According to the Jesse Witten, attorney for plaintiff Amanda Blackhorse, "[t]he Board ruled that the Trademark Office should have never registered these trademarks in the first place."
Under well-settled law, people are allowed to offend under the First Amendment's Free Speech Clause. What isn't so clear is if you can trademark offensive speech. Earlier this year, Michael Honda (Dem. of California) introduced the clumsily titled Bill, The Non-Disparagement of Native American Persons or Peoples in Trademark Registration Act. What a mouthful. But if the bill actually passes, it will at least carve out a clear exception within the Lanham act that Native Americans are not to be disparaged.
But in the meantime, courts are left to muddle around in the dark about what is and is not fair game. In March of 2015, the Attorney General's office filed a brief in favor of the plaintiffs stating that "Redskin's" is a form of commercial speech, thus is afforded limited First Amendment protection, and that many trademarks have been canceled because of their disparaging nature. The ACLU has opined that the Lanham Act provision that bars disparaging terms is so vague as to be unconstitutional.
Good Taste? Nope.
If "Take Yo Panties Off" deserves trademark protection, then we know that bathroom humor won't keep any future statements out. What appears to be at clincher is that the Redskin's trademark is offensive not in any scatalogical or sexual manner, but potentially in an ethnic manner.
Does this mean that one cannot trademark racially offensive titles? If that's the case, then "Dangerous Negro Shirts" and "Gringo Style Salsa" are also not long for this world. Clearly the term "Negro" is as offensive now as "Redskins" was offensive at the time of the original granting. If anything, one could argue that these are examples of trademarks that are even more pointedly offensive than "Redskins." Good taste aside, no doubt the submitted court documents will undoubtedly provide for more blush-worthy reading in the coming months.