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If and when the washIngton Red-
skins trademark dispute gets to the U.S.
Supreme Court, it is not certain that the
justices would uphold a ruling in June
canceling the team’s marks as dispar
aging to Native Americans. A divided
panel of three administrative law
judges from the U.S. Patent and Trade
mark Office canceled six of the National
Football League team’s trademarks.
The majority concluded that the trade
mark registrations “must be canceled”
because a substantial number of Native
Americans saw the term “redskin” as
offensive as long ago as 1967, when the
first of the trademarks was issued.
“This racial designation based on
skin color is disparaging to Native
Americans,” wrote Administrative
Trademark Judge Karen Kuhlke of the
Trademark Trial and Appeal Board.
She was joined by Peter Cataldo, while
Marc Bergsman dissented.
The football team can appeal to the
U.S. District Court for the Eastern Dis
trict of Virginia, where it can further
develop the record and introduce new
evidence. Or it can turn to the U.S. Court
of Appeals for the Federal Circuit, where
the record will remain as is. Numerous
other issues could form the basis of an
appeal, including “laches”—the prin
ciple that those challenging the trade
marks delayed doing so for too long.
Another possibility is a First Amend
ment claim. If the team frames the con
troversy as a violation of its owner’s
First Amendment rights, the high
court could feel compelled to consider
whether government agencies should
decide which marks are “disparaging”
and which are not.
One thing seems clear: The team will
take some action. In the aftermath of
June’s decision, team officials pledged
to appeal. And they have reason for
confidence. A similar ruling in a 1999
predecessor case was overturned and,
after a lengthy appeal, the Supreme
Court denied review in 2009.
The Supreme Court traditionally
gives fewer First Amendment protec
tions to commercial speech, although in
recent years its value has risen among
justices. According to First Amend
ment expert Erwin Chemerinsky, the
court generally has not applied the First
Amendment to trademark and copy
“The difficult underlying question
is the extent to which the First Amend
ment limits decisions of the U.S. Patent
and Trademark Office,” says Chem
erinsky, dean of University of Califor
nia, Irvine School of Law. “All grants of
intellectual property, such as copyrights
and trademarks, limit speech. But the
court has been unwilling to use the First
Amendment as a limit in this area.”
Nonetheless, Chemerinsky says,
“this is different. This is the government
making a decision on conferring a ben
efit based on the content of the speech.
I think this raises a real basis for a First
The Roberts court has expanded the
reach of the First Amendment in other
contexts, such as campaign finance
restrictions in which, critics say, the
court seems eager to embrace the First
Amendment when businesses claim
their right to free expression is being
infringed. “My tentative view is that
the general exclusion of marks that
disparage persons, institutions, beliefs
or national symbols should be seen as
unconstitutional,” First Amendment
scholar Eugene Volokh wrote on his
Volokh Conspiracy blog. “An exclusion
of marks that disparage groups while
allowing marks that praise those groups
strikes me as viewpoint discrimination.” T O M
By Tony MAuro AnD JennA Greene ] [ The redskins lost a round in a trademark dispute, but where will it end?
ON YOUR MARK
INSIDE THIS MONTH
* Bloggers’ Revenge.
* Supreme Court laughfest.
pRotesteRs held up sIgns befoRe washIngton played
dallas In texas last yeaR. InseRt: RedskIns helmet