Stephen Dinan, Washington Times, March 24, 2015

The Washington Redskins’ name is commercial speech and isn’t the kind of free expression protected by the First Amendment, the Obama administration told a federal court this week in defending a ruling that has stripped the football team of trademark protections.

The team’s name itself is not at stake, but if the trademark is canceled the name becomes less valuable because the owners would struggle to enforce their trademark against anyone who wanted to use the name or Indian logo on their own merchandise.

In a filing Monday, the Justice Department defended the Trademark Trial and Appeal Board’s decision last year to strip the team of protections.

“Not only do trademarks function only minimally as a vehicle for expression, but trademark registration also involves the necessary participation of the government in approving that registration, which confers relaxed First Amendment review even when combined with the speech of a private party,” the Obama lawyers said.

Trademark law says disparaging marks cannot be granted protections, and the government argues that the name has become disparaging over the last century. The trademark board, in its 2-1 ruling, also cited polling suggesting a significant percentage of Native Americans consider the name a slur.

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