The NFL’s Washington Redskins filed their long-anticipated appeal brief to the U.S. Court of Appeals. The team seeks to overturn the district court’s action cancelling six of the team’s REDSKINS trademarks registered between 1967 and 1990 as “disparaging” to Native Americans.
The Redskins seek to have the court hold that the USPTO and the district court wrongly denied the argument that the content and viewpoint restrictions of the “disparagement” clause violate the First Amendment, by cancelling registrations that convey messages the government disfavors. The Redskins ask the court to find the disparagement clause unconstitutionally vague. Whether a trademark disparages a “substantial composite” of a group like Native Americans is wholly subjective, and fosters arbitrary enforcement. As a result, the government’s decisions on disparagement are arbitrary and unpredictable: Arbitrary enforcement of the disparagement clause led to the unprecedented cancellations of the REDSKINS trademarks in this case.
The team also appeals the lower court’s ruling that the government’s “massive” delay in cancelling the registrations did not violate due process because by 2006, when the Native Americans sought cancellation, the best evidence of what Native Americans thought in 1967 was long gone.
On the issue that the Redskins marks were not disparaging when registered starting in 1967, the Redskins claim that the Native Americans failed to show, by any preponderance of the evidence, that the REDSKINS marks were disparaging when registered in 1967, 1974, 1978, or 1990, the dates of registration.
On the issue that delay bars the cancellation claim, the Redskins argue that the district court erred in finding that laches did not bar the petitioner’s cancellation claims. Since the oldest petitioner waited six years while the youngest waited 11 months and 20 days, the delay economically prejudiced the team because during 2006, the value of the team’s brand grew $18 million to $130 million.
In light of this case, trademark owners should be particularly careful when selecting trademarks that might be deemed “disparaging.” It is best to err on the side of selecting trademarks that might not be viewed in this light. If you are considering selecting a mark that might be viewed as “disparaging,” our trademark partners our trademark partners are happy to provide advice.