Washington Redskins: Update On The Trademark Case That Could Impact Team’s Name

The Band’s Lawyer Predictably Took The Position That All Offensive Names Are Protected By The First Amendment

Not surprisingly, the band’s lawyer, John Connell, pressed the absolutist position that any name, however offensive it may be, was protected by the First Amendment. Justice Sotomayor, however, tested the limits of his view by asking him whether the PTO should approve a trademark that “Donald Trump is a thief” even if it was proven that Trump, in fact, was not. Connell answered that the PTO was constitutionally duty bound to do so, to which Justice Sotomayor responded, “That makes no sense.”

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Chief Justice Roberts, however, appeared to help Connell out by lobbing a softball question his way. The Chief Justice asked Connell whether the PTO could reject applications containing false statements like that on grounds that they were libelous, a form of speech that doesn’t enjoy First Amendment protection. Connell quickly took the hint and moderated his position to one took into account the distinction between trademarks that are objectively false and others which express an opinion.

The Chief Justice also assisted Connell in answering a hypothetical about a government-sponsored, Shakespearean-themed festival. If the purpose of that festival was to celebrate Shakespeare, couldn’t the government, the Chief Justice wondered, ban someone who wanted to engage in anti-Shakespearean conduct? Connell seemed to agree, explaining that the festival would be a limited forum created by the government. That, however, didn’t entirely satisfy the Chief Justice, who again led Connell into the answer he wanted to hear. In the Chief Justice’s view, enforcing a pro-Shakespearean message in his hypothetical might be appropriate since the festival is a small subset in the overall larger scheme of government regulation. More specifically, the festival wouldn’t compare to the “comprehensive nature” of the trademark program set forth in the Act.

But Connell had difficulty responding to a question by Justice Sotomayor as to whether there was a First Amendment issue at all in the band’s case. She pointed out that the PTO’s function is to simply extend trademark protection to a name or slogan. If it rejects a trademark application or cancels a trademark, that doesn’t prohibit organizations like the band or the Redskins from exercising their First Amendment freedoms in using those names. Because it doesn’t, Justice Sotomayor asked how that burdens any First Amendment right that the band – or anyone else like the team – has. Connell danced around that question, instead arguing that drawing distinctions between offensive and non-offensive trademarks would amount to viewpoint regulation, something which the Constitution forbids.