With a high-profile clash with the undefeated Patriots coming up on Sunday, you can probably guess the only thing I want to discuss this week.
That's right: Trademark law!
Who wants to talk Tom Brady and Rob Gronkowski when we can talk "Pro-Football, Inc." and Amanda Blackhorse?!?
Anyway, the Washington Redskins filed the opening brief in their much-publicized trademark case, now pending before the Fourth Circuit Court of Appeals. The brief is now available online. Page 16 of the PDF (page one of the brief) includes the five issues / arguments that the Redskins are trying to address on appeal. To the extent possible while quickly reading the brief during my lunch break, I'll summarize each of these five arguments:
1. The team argues that the provision of the Lanham Act that allows the government to reject or cancel trademarks that are "disparaging" is unconstitutional. The government cannot confer a benefit on speech that is "acceptable" and deny or cancel that benefit for speech that is "unacceptable." This is a violation of the rights guaranteed by the First Amendment, because it gives the government the power to create content-based distinctions within a category of speech that is otherwise protected against government sanction by the First Amendment.
2. In addition to the pure speech argument above, there is also the issue of impermissible vagueness. That argument goes something like this: Even if the underlying purpose of a law is constitutional, the stringent level of review the Redskins want in play here (called "strict scrutiny") requires that such a law be "narrowly tailored" to effectuate that purpose.
This is where the examples of the dozens of other potentially offensive marks come into play. Those examples have led to some funny articles about the litany of vulgar trademarks cited by the team, as well as the usual round of eye-rolling mockery of the club by outlets that fairly transparently dislike the Washington Redskins (or that perhaps don't fully grasp the arguments in play).
However, the team makes a crucial point in bringing those other names up. I addressed this myself last summer, but, as the team says in the brief: If the government allows all of these clearly "disparaging" marks to continue to get federal protection, but cancels protection for "Redskins," the understanding of how the law works becomes incoherent. Put simply, "disparaging" is hopelessly vague.
The team also presents examples where one mark was approved, but another, nearly-identical mark was rejected—sometimes just months apart. The team is saying that this arbitrary standard is invalid as applied.
3. The team says that the case against the Redskins trademark is an unconstitutional violation of due process (think "basic fairness"). They argue that cancelling marks based on a question of whether the marks were disparaging in 1967 is fundamentally unfair. For instance, the team references the logistical difficulty of gathering evidence and witnesses from almost 50 years ago in order to prove its case. See also #5 below.
4. The team maintains that the name is not disparaging, and, more to the point, was not disparaging in 1967. This is the argument most familiar to fans. If you've followed this issue at all over the last four years, you know all of this by heart, so I'll spare you the recitation.
5. Finally, there's the laches argument, which basically asserts that plaintiffs waited too long to try to cancel the mark. Laches is a legal concept that also speaks to procedural fairness. The idea is that, even if the underlying claim might be valid, the plaintiffs should be barred from prevailing because of this long delay. This is the rationale upon which the Redskins won the last case, which ended in 2005. It can be distinguished from argument #3 because it is a broader legal principle, while #3 above is a violation of a specific constitutional right, although there is conceptual overlap.
There are also a couple of other important points to keep in mind. The most important of which is that the team reiterates several times that, unlike, say, a state-produced license plate, trademark protection isn't "government speech."
This is a key tenet of the Redskins' argument. Part of the district court rationale was based on a recent Supreme Court case that held that a state does have the power to regulate speech on its own license plates because that is a form of "government speech."
Brass tax: Acknowledging my own biases as an even bigger fan of free speech than I am of the Redskins, I think the club has several very strong arguments. The biggest problem they'll have is that a ruling that the "disparagement" portion of the Lanham Act is unconstitutional would be a fairly significant shift. Usually, but not always, shifts like that won't come from the Fourth Circuit. They'll come from the Supreme Court, if at all.
Having said that, if the Fourth Circuit accepts the team's premise that the present case may be distinguished from the Texas license-plate case, a reversal becomes more likely than not in my view.
Finally, it's important to remember that the Lanham Act was written at a time when much of the jurisprudence that informs our understanding of free speech today did not exist. If it winds up going all the way to the Supreme Court, this case could become a bona fide landmark decision in the area of trademark law, if not First Amendment law.
Whether the club will appeal the case that far, or whether they will even need to do so, remains an open question.