Skip to main content

Why Redskins decision is wrong

By Marc Randazza
June 21, 2014 -- Updated 1836 GMT (0236 HKT)
STORY HIGHLIGHTS
  • Marc Randazza: Redskins lost trademark registration for name. News leaves 2 issue to consider
  • But Redskins still have trademark rights, can sue infringers, keep using racist term to identify team
  • Case raises First Amendment issues; why is trademark office arbiter of morality? he asks
  • Randazza: Trademarks are protected expression. Coercive censorship at play here

Editor's note: Marc J. Randazza is a Las Vegas-based First Amendment attorney and managing partner of the Randazza Legal Group. He is licensed to practice in Arizona, California, Florida, Massachusetts and Nevada. The opinions expressed in this commentary are solely those of the author.

(CNN) -- The Washington Redskins find themselves under (deserved) fire for their name, which many Native Americans and others find to be a racial slur. Previously the target of protests and opprobrium, the Redskins have now lost their federal trademark registration for the name, as it was deemed too disparaging to remain protected. There are two issue to consider here: one is technical and the other is one we should all find troubling.

The first: This case was about a trademark, and the primary purpose of trademark law is to protect the public so that the public can accurately know the source or origin of goods and services. But headlines that say the Redskins lost their trademark are inaccurate.

Marc Randazza
Marc Randazza

All they lost was their trademark registration, not the right to use the racist term to identify their team -- and that is a key point. In the United States, trademark rights flow from an organization using the trademark; technically, you don't need to register a trademark in order to have trademark rights. (In other countries, you need a registration).

With its common law rights intact, the team is free to continue to call itself the "Redskins." Moreover, it can still sue you for selling counterfeit Washington Redskins gear, and it can still block someone from starting a Washington Redskins dodgeball team. The Washington Redskins still have trademark rights, and strong rights at that.

If the team owners still have rights in the trademark, why is losing the registration a big deal? What does a registration give you? It gives you a few statutory presumptions in the event that you go to court over enforcement of your trademark. It gives a presumption of ownership and validity. In simple terms, the cancellation only means that if there is a trademark infringement lawsuit, the Washington Redskins team is going to have to pay a bit more in attorneys' fees to win its case.

Opinion: Is end near for Redskins? It's about time

But nobody can seriously argue that Dan Snyder's football team is not the owner of the still-intact trademark rights, nor that the public associates his team with the racist name.

The second issue: There is something even more offensive than the team's name: The fact that this case happened at all. The decision, I believe, has First Amendment implications that we shouldn't ignore.

Anti-Redskins ad airs during NBA finals
Anti-Redskins ad airs during NBA finals

I do not care whether you like or dislike the Washington Redskins' name. I think it's a pretty dumb thing to call a football team. If Native Americans believe that "redskin" is offensive to them, then it is. Most people agree that it is about as offensive as using any other ethnic slur. I respect their position and their argument.

Seattle Times gets rid of 'Redskins,' joins rising tide against name

Nevertheless, here are my criticisms of this decision: Section (2)(a) of the Trademark Act bars the registration of any trademark that is "immoral" "scandalous" or "disparaging." In other words, a civil servant executing the registration is allowed to be the arbiter of morality. Do we really want that?

Trademarks propose a commercial transaction. When you see or hear a trademark, you immediately receive information in a short-hand way that communicates where the products come from, or what level of service you can expect. Trademarks are First Amendment protected expression. There should be no issue with limiting their use to mislead the public. After all, what point do they serve if they do not propose a truthful association with their owner? And what rational governmental purpose does it serve to deny a benefit to a business because it might be deemed "immoral" by someone?

And why are we even arguing the point? The government should not be in the business of deciding what is moral, immoral, or offensive. This section of the trademark act is a leftover from Victorian times, and is used now primarily to promote social agendas with coercive censorship.

To justify such censorship, the government must demonstrate that the harms it seeks to address are real and that its restriction will in fact alleviate them to a material degree. In addition, the courts have found, such a restriction "may not be sustained if it provides only ineffective or remote support for the government's purpose." These mandates are "critical," for otherwise "[the government] could with ease restrict commercial speech in the service of other objectives that could not themselves justify a burden on commercial expression."

In this case, what is the governmental purpose in depriving the Redskins of their trademark registration? Is it that the government is serving as a morality teacher? Is it choosing a favored position, and then enforcing it by only giving government benefits to companies that agree with that orthodoxy?

Do you trust any government to tell you what your morality should be? If so, do you trust this government to do that?

Remember, even if you're one of the well-intentioned many who think that the name is disgusting, do you want to surrender your First Amendment rights to the next group who might find your morality to be outside the norm? I do not. While I think that Dan Snyder should change the name of his football team, I think that the government should remain neutral in the matter.

Follow us on Twitter @CNNOpinion.

Join us on Facebook.com/CNNOpinion.

ADVERTISEMENT
Part of complete coverage on
August 22, 2014 -- Updated 1231 GMT (2031 HKT)
James Dawes says calling ISIS evil over and over again could very well make it harder to stop them.
August 22, 2014 -- Updated 1223 GMT (2023 HKT)
Retired Lt. Gen. Mark Hertling says he learned that the territory ISIS wants to control is amazingly complex.
August 21, 2014 -- Updated 1450 GMT (2250 HKT)
David Weinberger says Twitter and other social networks have been vested with a responsibility, and a trust, they did not ask for.
August 22, 2014 -- Updated 1103 GMT (1903 HKT)
John Inazu says the slogan "We are Ferguson" is meant to express empathy and solidarity. It's not true: Not all of us live in those circumstances. But we all made them.
August 20, 2014 -- Updated 1951 GMT (0351 HKT)
Cerue Garlo says Liberia is desperate for help amid a Ebola outbreak that has touched every aspect of life.
August 21, 2014 -- Updated 1742 GMT (0142 HKT)
Eric Liu says Republicans who want to restrict voting may win now, but the party will suffer in the long term.
August 21, 2014 -- Updated 1538 GMT (2338 HKT)
Jay Parini: Jesus, Pope and now researchers agree: Wealth decreases our ability to sympathize with the poor.
August 21, 2014 -- Updated 1200 GMT (2000 HKT)
Judy Melinek offers a medical examiner's perspective on what happens when police kill people like Michael Brown.
August 19, 2014 -- Updated 2203 GMT (0603 HKT)
It used to be billy clubs, fire hoses and snarling German shepherds. Now it's armored personnel carriers and flash-bang grenades, writes Kara Dansky.
August 20, 2014 -- Updated 1727 GMT (0127 HKT)
Maria Haberfeld: People who are unfamiliar with police work can reasonably ask, why was an unarmed man shot so many times, and why was deadly force used at all?
August 18, 2014 -- Updated 2152 GMT (0552 HKT)
Ruben Navarrette notes that this fall, minority students will outnumber white students at America's public schools.
August 19, 2014 -- Updated 2121 GMT (0521 HKT)
Humans have driven to extinction four marine mammal species in modern times. As you read this, we are on the brink of losing the fifth, write three experts.
August 19, 2014 -- Updated 1158 GMT (1958 HKT)
It's been ten days since Michael Brown was killed, and his family is still waiting for information from investigators about what happened to their young man, writes Mel Robbins
August 18, 2014 -- Updated 1242 GMT (2042 HKT)
The former U.K. prime minister and current U.N. envoy says there are 500 days left to fulfill the Millennium Goals' promise to children.
August 20, 2014 -- Updated 1738 GMT (0138 HKT)
Peter Bergen says the terror group is a huge threat in Iraq but only a potential one in the U.S.
August 18, 2014 -- Updated 2006 GMT (0406 HKT)
Pepper Schwartz asks why young women are so entranced with Kardashian, who's putting together a 352-page book of selfies
ADVERTISEMENT