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

By Desmond Lee

Dec 4, 2016; Glendale, AZ, USA; General view of a Washington Redskins helmet and logo prior to the game against the Arizona Cardinals at University of Phoenix Stadium. Mandatory Credit: Matt Kartozian-USA TODAY Sports
Dec 4, 2016; Glendale, AZ, USA; General view of a Washington Redskins helmet and logo prior to the game against the Arizona Cardinals at University of Phoenix Stadium. Mandatory Credit: Matt Kartozian-USA TODAY Sports /
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Jan 1, 2017; Landover, MD, USA; Washington Redskin fan in the stands against the New York Giants during the first half at FedEx Field. Mandatory Credit: Brad Mills-USA TODAY Sports
Jan 1, 2017; Landover, MD, USA; Washington Redskin fan in the stands against the New York Giants during the first half at FedEx Field. Mandatory Credit: Brad Mills-USA TODAY Sports /

The PTO’s Lawyer Had Trouble Answering Whether The PTO Was Engaging In Viewpoint Discrimination By Banning Disparaging Trademarks

Justice Kagan took up the viewpoint discrimination raised by Connell with Malcolm Stewart, the PTO’s lawyer. Stewart struggled in answering Justice Kagan’s questions about whether the Act’s ban on disparaging trademarks was a restriction based on the viewpoints expressed by an applicant. In particular, she noted that the PTO, under his view, would approve of a trademark that the American flag is a “wonderful emblem,” but would reject one that the flag would be a “terrible emblem.” Said Kagan: “that’s what this regulation does.”

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The Court also expressed problems with Stewart’s view that the PTO was a “government program” like a fire or police department. Justice Alito asked whether “government programs” like them could decide to provide municipal protections based on the viewpoints held by citizens they were meant to serve. Stewart stumbled in cobbling together a response before conceding that Justice Alito’s hypothetical did, in fact, raise issues under the First Amendment.

Stewart’s attempt to analogize the PTO to a room in a school also backfired. If a teacher in that room can ban racial epithets, Stewart queried, why can’t the PTO reject disparaging trademarks? Justice Kennedy shot back at Stewart, asking whether the government should become an “omnipresent schoolteacher” deciding whether trademarks are disparaging. Stewart meekly countered by arguing that the room (like the PTO) represented a small part of the nation’s larger regulatory scheme. Because the room (and PTO) would constitute a limited intrusion on expressive conduct, that, implied Stewart, should pass Constitutional muster. But the Chief Justice again disagreed, noting that “if you’re talking about the entire trademark program, it seems to me to be something else.”

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