Redskins’ Trademark is Not About Free Speech.

Before everyone starts ringing the Free Speech Liberty Bell about the USPTO canceling the Redskin’s trademark, it’s important to note that this really has nothing to do with regulating free speech.  You do not have a free speech right to own a trademark that is protected by the government, and enforced through a court of law.

In fact, trademarks and other forms of intellectual property themselves are inherently anti-free speech mechanisms.   A trademark is a symbol, word, or phrase, or a combination thereof that is legally registered or established by use to represent the source of products.  It gives the owner of the trademark a legally protected interest in preventing others from using it.  Thus, it allows owners of trademarks to censor others who would attempt to use the trademark for themselves without the owner’s permission.

Recognizing that trademarks could potentially be used as a means for censorship, the Supreme Court has carved out a Fair Use Doctrine that allows for criticism and analysis of trademarks recognizing First Amendment interests against certain types of trademark protection. See KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111 (2004). 

Yet, even though trademarks are a potential vehicle for regulating certain types of speech, our society has determined that the right of consumers to identify the true source of goods, outweighs the interest of a business owner trying to take advantage of another company’s market strength through deception.

But going back to the Redskins, nothing in this decision affects the team’s right to have an offensive name and logo.  It only affects their right to use the power of the judicial system to prevent others from using the team name and logo.  It is essentially the government making a determination as to what logos can be protected through judicial action.

It’s not much different than the seminal Shelley v. Kraemer case, where the Supreme Court held that racially restrictive covenants on real property were unenforceable.  Shelley v. Kraemer, 334 US 1 (1948).

In that case, there was a private, restrictive covenant on property that blocked “people of the Negro or Asian race” from living in the neighborhood.  While the agreement was a purely private one, any judicial action to enforce the covenant would be a government action, and thus, violative of the Equal Protection Clause.

I’m not arguing that the Redskins’ trademark is violative of equal protection, but the rationale is somewhat analogous when you realize that the government protecting the mark is, in its essence, the use of public resources (the court system) to promote offensive speech.

There is an entirely different line of cases that says that the government may use its resources to promote whatever speech it feels appropriate, and this does not violate the First Amendment.  Courts have ruled that the government is entitled to promote a point of view as long as that view doesn’t violate other parts of the Constitution.  Pleasant Grove v. Summum, 555 U.S. 460 (2009).

The First Amendment only applies to the government’s regulation of private speech, and once speech is identified as government speech it is no longer a First Amendment issue.

In another case, Rust v. Sullivan, 500 U.S. 173 (1991), the court held that the government could actually withhold funding from clinics that advised or counseled women to seek abortions.  The court ruled that the use of public funds to support one viewpoint over another is not discrimination simply by the government holding a particular viewpoint at the expense of another.

Therefore, if the USPTO has determined that it will not use its authority to enforce a trademark that has been deemed offensive, it has every right to do so, and that has nothing to do with the First Amendment.

I’m always an advocate of Free Speech and a person’s ability to say whatever they want – even if it’s offensive –  but what we are talking about here is not the same thing.  Trademarks are often used as a mechanism to censor others, especially under the guise of the “anti-dilution” doctrine, which I don’t have time to explain right now.

But imagine a scenario where the USPTO upheld the Redskins’ trademark again, and the groups opposed to it decided to make a parody logo of the Redskins in order to criticize them.  As a result, the Redskins bring a lawsuit against those groups for “diluting” the value of the mark.  Who would be the victim of censorship in that scenario?

One Comment

on “Redskins’ Trademark is Not About Free Speech.
One Comment on “Redskins’ Trademark is Not About Free Speech.
  1. Jerrod – Good post. You may be right that a free speech argument won’t win here in the Redskins case, but I wonder if there would be a more effective way of getting to that conclusion.

    The unequivocal pronouncement in the post that one does “not have a free speech right to own a trademark that is protected by the government, and enforced through a court of law” seems a bit hard to accept for all circumstances. Query whether you’d not find it a free speech assault if Congress amended the Lanham Act to provide that only Christianity-promoting marks are entitled to registration and the benefits thereof. Or that marks containing images of cats are not registrable. If you can come along that far with me, let’s fine tune the starting point a bit and see if we can still properly frame a free speech analysis.

    You’re obviously correct that the TTAB decision doesn’t prohibit the team from using the mark (the TTAB simply doesn’t have that jurisdiction). But the existence of a trademark registration enables one to engage in marketplace speech in ways not available to owners of mere common law marks (e.g., getting customs to cooperate, presumption of ownership in litigation, public notice, etc.) In these ways, the issuance of a registration certificate is a benefit conferred by the government.

    The Supreme Court has “prohibited conditions on public benefits . . . which dampen the exercise generally of First Amendment rights, however slight the inducement to the individual to forsake those rights.” Elrod v. Burns, 427 U.S. 347 (1976). That sentiment underscores how precious the ability to freely speak is — anything, even a tiny thing, that dampens it, is contrary to that important interest.

    Said another way, a government-granted registration gives greater volume to the registration owner’s commercial voice. And that puts the issue in finer resolution — this would be a commercial speech case. And we can look to the lodestar of the Central Hudson test for guidance. Simply stated, it’s not a free speech violation to restrict commercial speech if the restriction passes intermediate scrutiny, i.e., is it a restriction no broader than necessary to directly advance a substantial government interest?

    That’s how I’d analyze it. And the fact that it’s a crazy slippery slope (e.g., NAACP, United Negro College Fund, N.W.A., White Men Can’t Read This are all registered marks — should they be cancelled too?) shows me that allowing the Central Hudson test to be applied in a way that would support the TTAB’s decision in the Redskins matter would lead only to absurdity.

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