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The Washington Redskins and other disparaging trade marks

Print publication

13/01/2016


In July this year, a US District Court ordered the removal of the Washington Redskins trade mark from the register. The trade mark is the name of the Washington Redskins, an NFL team. The judge did so on the ground that the registration was disparaging to Native Americans and therefore unlawful. The ruling followed a petition presented by a group of Native Americans complaining to the federal Trademark Trial and Appeal Board, which then ruled the mark offensive, a decision upheld by the District Court.

The revocation does not become effective until the appeal process had become exhausted and the proprietor of the mark, Pro Football, Inc. has confirmed that it will be appealing the decision.

The grounds for appeal were published in November and a central argument is that the trade mark register is already populated (“infested” is the word used) with racist and/or offensive names. It lists some of them: TAKE YO PANTIES OFF, DAGO SWAGG (for clothing), RETARDIPEDIA (useless information), MIDGET MAN (for condoms and inflatable sex dolls) and BAKED BY A NEGRO (bakery products). The argument is that if the Redskins trade mark cannot stand, then neither should any of these marks or otherwise confusion will reign and the term “disparaging” will be meaningless. Pro Football also maintains that the name honours Native Americans rather than disparages them and the team is supported by a number of Native Americans.

Pro Football is also arguing that the provisions of the trade mark statute permitting the government to cancel trade marks that are “disparaging” is unconstitutional, being in violation of the First Amendment. The appeal is to be heard by the Fourth Circuit Court of Appeals and it would be a big call for the Fourth Circuit to rule federal legislation unconstitutional, this being more something for the Supreme Court. Even so, the appeal does raise an important question of what is “disparaging” and what is not, so this case is certainly one to watch.

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