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
September 1, 2014 -- Updated 1221 GMT (2021 HKT)
Carlos Moreno says atheists, a sizable fraction of Americans, deserve representation in Congress.
August 31, 2014 -- Updated 1625 GMT (0025 HKT)
Julian Zelizer says Democrats and unions have a long history of mutual support that's on the decline. But in a time of income inequality they need each other more than ever
August 31, 2014 -- Updated 0423 GMT (1223 HKT)
William McRaven
Peter Bergen says Admiral William McRaven leaves the military with a legacy of strategic thinking about special operations
August 29, 2014 -- Updated 1611 GMT (0011 HKT)
Leon Aron says the U.S. and Europe can help get Russia out of Ukraine by helping Ukraine win its just war, sharing defense technologies and intelligence
August 29, 2014 -- Updated 1724 GMT (0124 HKT)
Timothy Stanley the report on widespread child abuse in a British town reveals an institutional betrayal by police, social services and politicians. Negligent officials must face justice
August 30, 2014 -- Updated 0106 GMT (0906 HKT)
Peter Bergen and David Sterman say a new video of an American suicide bomber shows how Turkey's militant networks are key to jihadists' movement into Syria and Iraq. Turkey must stem the flow
September 1, 2014 -- Updated 1554 GMT (2354 HKT)
Whitney Barkley says many for-profit colleges deceive students, charge exorbitant tuitions and make false promises
August 29, 2014 -- Updated 1434 GMT (2234 HKT)
Mark O'Mara says the time has come to decide whether we really want police empowered to shoot those they believe are 'fleeing felons'
August 28, 2014 -- Updated 1432 GMT (2232 HKT)
Bill Frelick says a tool of rights workers is 'naming and shaming,' ensuring accountability for human rights crimes in conflicts. But what if wrongdoers know no shame?
August 29, 2014 -- Updated 0243 GMT (1043 HKT)
Jay Parini says, no, a little girl shouldn't fire an Uzi, but none of should have easy access to guns: The Second Amendment was not written to give us such a 'right,' no matter what the NRA says
August 30, 2014 -- Updated 1722 GMT (0122 HKT)
Terra Ziporyn Snider says many adolescents suffer chronic sleep deprivation, which can indeed lead to safety problems. Would starting school an hour later be so wrong?
August 29, 2014 -- Updated 1330 GMT (2130 HKT)
Peggy Drexler says after all the celebrity divorces, it's tempting to ask the question. But there are still considerable benefits to getting hitched
August 29, 2014 -- Updated 1849 GMT (0249 HKT)
The death of Douglas McAuthur McCain, the first American killed fighting for ISIS, highlights the pull of Syria's war for Western jihadists, writes Peter Bergen.
August 26, 2014 -- Updated 2242 GMT (0642 HKT)
Former ambassador to Syria Robert Ford says the West should be helping moderates in the Syrian armed opposition end the al-Assad regime and form a government to focus on driving ISIS out
August 27, 2014 -- Updated 1321 GMT (2121 HKT)
Ruben Navarrette says a great country does not deport thousands of vulnerable, unaccompanied minors who fled in fear for their lives
August 27, 2014 -- Updated 1319 GMT (2119 HKT)
Robert McIntyre says Congress is the culprit for letting Burger King pay lower taxes after merging with Tim Hortons.
August 26, 2014 -- Updated 2335 GMT (0735 HKT)
Wesley Clark says the U.S. can offer support to its Islamic friends in the region most threatened by ISIS, but it can't fight their war
August 26, 2014 -- Updated 2053 GMT (0453 HKT)
America's painful struggle with racism has often brought great satisfaction to the country's rivals, critics, and foes. The killing of Michael Brown and its tumultuous aftermath has been a bonanza.
August 26, 2014 -- Updated 1919 GMT (0319 HKT)
Rick Martin says the death of Robin Williams brought back memories of his own battle facing down depression as a young man
August 26, 2014 -- Updated 1558 GMT (2358 HKT)
David Perry asks: What's the best way for police officers to handle people with psychiatric disabilities?
August 25, 2014 -- Updated 1950 GMT (0350 HKT)
Julian Zelizer says it's not crazy to think Mitt Romney would be able to end up at the top of the GOP ticket in 2016
August 25, 2014 -- Updated 2052 GMT (0452 HKT)
Roxanne Jones and her girlfriends would cheer from the sidelines for the boys playing Little League. But they really wanted to play. Now Mo'ne Davis shows the world that girls really can throw.
August 25, 2014 -- Updated 2104 GMT (0504 HKT)
Kimberly Norwood is a black mom who lives in an affluent neighborhood not far from Ferguson, but she has the same fears for her children as people in that troubled town do
August 22, 2014 -- Updated 2145 GMT (0545 HKT)
It apparently has worked for France, say Peter Bergen and Emily Schneider, but carries uncomfortable risks. When it comes to kidnappings, nations face grim options.
ADVERTISEMENT