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Redskins Call Trademark Ban Unconstitutional in Appeal

The Washington Redskins defend their use of the team’s nickname by claiming that a federal ban on several of their trademarks infringes on the team’s right to free speech. The federal order against the team derives from the supposition that the term “Redskins” disparages Native Americans.

The Trademark Trial and Appeal Board ruled last year that the team could no longer use its trademark because they deemed it offensive to Native Americans. The team’s attorneys argue that the very act of banning disparaging trademarks is unconstitutional; they assert that the board’s decision targeted the team “for disfavored treatment based solely on the content of its protected speech, interfering with the ongoing public discourse over the Redskins’ name by choosing sides and cutting off the debate. This the U.S. Constitution does not tolerate.” The attorneys point out that teams such as the Atlanta Braves have not been targeted.

The Redskins still believe the term “Redskins” itself is not disparaging, and have asked the judge to rule in their favor based on perspective, but papers filed with the court on Monday are targeted on the very constitutionality of the law that was used to ban their team’s trademark.

There have been cases akin to the Redskins’ case in which federal lawyers have argued that the law does not forbid disparaging speech; it just bans the use of such terms for trademarks. That argument would permit the Redskins to keep using the term to name the team, but prevent the team from the legal protections derived from a registered trademark.

The Redskins argue that the government ban on the trademark would violate the First Amendment by burdening the use of free speech, chiefly because the team has used the name since 1933. Another argument from the team’s attorneys asserts that the ban on the trademark would constitute a denial of due process because the ban came decades after the trademark had been established.

Last August, the Redskins appealed the decision by the Trademark Trial and Appeal Board, stating, “Specifically, by cancelling valuable, decades-old registrations, the Board improperly penalized the Washington Redskins based on the content of the team’s speech in violation of the First Amendment. The complaint also alleges that the team has been unfairly deprived of its valuable and long-held intellectual property rights in violation of the Fifth Amendment.”

The issue will come before a hearing on May 5.

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