A federal district court today upheld the Trademark Trial and Appeal Board’s cancellation of the Redskins mark. A federal statute bars registrations of marks that “may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute”; the district court agreed that the Redskins fell within this prohibition. This decision doesn’t bar the Redskins from using their name, but it does reduce their ability to use trademark law to stop various infringing Redskins gear.
The analysis strikes me as unpersuasive: I don’t think that historically trademarks have been used to “communicate messages from the [government].” I don’t think “the publicly closely associates [trademarks] with the [government].” And while the government does have and does exercise some control over which trademarks are allowed, I don’t think that this itself can suffice to justify viewpoint discrimination, since in all viewpoint-discriminatory programs (including ones the Court has condemned), the whole dispute was about the fact that the government was trying to exercise control about what speech is allowed.
Instead, it seems to me that trademark law is much closer to the programs in which viewpoint discrimination is forbidden . . . . The special government-provided benefits given to trademark owners — or copyright owners — are similarly private speech, despite the government involvement, and the government shouldn’t selectively deny those benefits to speakers who have certain views. … Read More
(via The Volokh Conspiracy)