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First Amendment

NFL team's First Amendment rights weren't violated by loss of disparaging trademarks, judge rules

A federal judge has rejected constitutional claims by Washington’s NFL team in a suit challenging cancellation of six trademarks for its name.

The Trademark Trial and Appeal Board had canceled the trademark registration in June 2014 because the trademarks were disparaging to Native Americans. In a decision on Wednesday, U.S. District Judge Gerald Bruce Lee of Alexandria, Virginia, ruled cancellation of the marks did not violate the team’s constitutional rights, including its rights to free speech. The Washington Post covered the decision (PDF).

Lee’s opinion affirmed the TTAB ruling and ordered cancellation of registration for the trademarks. He ruled in the team’s federal lawsuit against Amanda Blackhorse and other Native American activists who successfully challenged the trademarks before the appeal board.

“The term ‘redskin,’ in the context of Native Americans and during the relevant time period, was offensive and one that ‘may disparage’ a substantial composite of Native Americans,” Lee wrote.

Lee cited two reasons for his First Amendment ruling. First, he said the Lanham Act section barring registration of disparaging trademarks doesn’t implicate the First Amendment because the team can still use the unregistered trademark.

Second, Lee said the federal trademark registration program is government speech and is exempt from First Amendment scrutiny. He cited Walker v. Sons of Confederate Veterans, a June U.S. Supreme Court decision finding that Texas did not violate the First Amendment when it rejected a specialty license plate featuring the Confederate battle flag.

Lee also said the law governing disparaging marks was not impermissibly vague because it gives a fair warning of what is prohibited, and the appeal board order was not an unconstitutional taking because a trademark registration is not considered property.