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A Belated Hanukkah Gift For A Wealthy Man

Hanukkah ended last week. Christmas isn’t until Friday. But Daniel Snyder, whose most visible business asset, a professional football team based near Washington, D.C., has come under criticism for maintaining the nickname “Redskins”,1 got his gift today.

On June 18, 2014, the team lost its claim before the Trademark Trial and Appeal Board (the “TTAB”), the quasi-judicial administrative branch of the U.S. Patent and Trademark Office (the “PTO”), in a case called Blackhorse v. Pro-Football, Inc. In its opinion, the TTAB said that the name “Washington Redskins” was disparaging to a substantial number of Native Americans even in the late 1960’s when the label was first registered as a trademark.2 Therefore, TTAB withdrew recognition of the trademark “Redskins.”

On appeal, before the U.S. District Court for the Northern District of Virginia, the team lost again on July 8, 2015, for substantially the same reasons it lost before TTAB. A further appeal is currently pending before the Fourth Circuit.

Today, the Federal Circuit3 issued an opinion in another case, one involving a rock band fronted and managed by a man named Simon Shiao Tam. I’ll let the Federal Circuit’s opinion describe what was at stake:

Mr. Tam is the “front man” for the Asian-American dance-rock band The Slants. Mr. Tam named his band The Slants to “reclaim” and “take ownership” of Asian stereotypes. … The band draws inspiration for its lyrics from childhood slurs and mocking nursery rhymes, … and its albums include “The Yellow Album” and “Slanted Eyes, Slanted Hearts.” The band “feel[s] strongly that Asians should be proud of their cultural heri[ta]ge, and not be offended by stereotypical descriptions.” In Re Tam, slip op. at 10-11.

The PTO examiner denied Mr. Tam’s trademark application. She thought that a significant number of Asian-Americans might find a name called “The Slants” objectionable and disparaging. No wonder, since Tam deliberately selected a name that is commonly held to be objectionable and disparaging.

The nine judges in the majority of the Federal Circuit’s twelve-judge en banc panel wrote that the PTO examiner’s evaluation, guided by section 2(a) of the principal Federal trademark law, known as the Lanham Act, constituted a governmental evaluation about the objectionable content of speech — and the denial of the trademark protection as penalizing speech containing content of which government disapproved. When the government engages in content-based viewpoint selection, well-established precedent is that strict scrutiny applies to the law that the government uses. Strict scrutiny, Constitutional scholars, lawyers, and law junkies alike will recall, requires the government to demonstrate that 1) the law in question, here a restriction on trademark restrictions, is necessary to realize a compelling governmental interest, and 2) the law in question is narrowly-tailored to permit as much freedom as possible while still realizing that compelling interest. If the government cannot do this, then the law is unconstitutional.

Based on that, the Federal Circuit struck down section 2(a) of the Lanham Act as unconstitutional, finding that on its face it contains viewpoint discrimination without substantial justification. The logic is inevitable; strict scrutiny applies to content-based restrictions on speech and has for a very long time. Nothing new here. The government really did offer very little justification that can be offered other than that “Yeah, this is pretty offensive stuff.” But as we all know, the First Amendment does protect offensive speech.

Or, you might argue that putting a label on a bottle of sweet fizzy water to identify the manufacturer is not speech, it is commercial activity. Thus, you might claim, trademarks are not speech at all, they are commerce. And Congress can regulate commerce essentially as it chooses. Alternatively, you might argue that trademarks are something of a hybrid — a kind of communication known as “commercial speech.” Courts review laws regulating commercial speech under a different and more deferential standard of review known as “intermediate scrutiny.” The government may regulate the content of communication to advance an “important” governmental objective, with the same sort of narrow tailoring as under strict scrutiny, and prevention of fraud is one such “important” objective permitting the regulation and possible prohibition of false advertising. The dissent in Tam places significant weight on the fact that whatever speech and communication is going on with a trademark is done by associating that speech with a particular product (or service) and as such the high level of scrutiny demanded by the First Amendment is simply not in play.

About the only other significant place you can go from a strict scrutiny standard is to say that the racially-charged nature of a band name like “The Slants” (or a team name like “the Redskins”) is something that the government has a compelling interest in regulating, because to do otherwise would deny people in the identified groups the equal protection of the laws. Note that this notion, or at least something akin to it was dismissed by the majority: It is not the government’s job to tell people how to think; it is only the government’s job to treat people equally. Tellingly, the dissents completely ignored this concept.

Tam’s implication for the ongoing Blackhorse case is obvious: If Mr. Tam has a Constitutional right to have his band’s name treated the same by the government as it would treat a less offensive name like, say, “The Rolling Stones,” then Mr. Snyder has a similar Constitutional right to have his football team’s name treated the same way as a similarly less-offensive name like “The Tampa Bay Buccaneers,” and the earlier holdings in the Blackhorse case should be reversed.

Tam does three ambitious things that are legally significant: First, it classifies trademarks as pure speech rather than commercial speech. Second, it flies directly against the holding of the very high-profile Blackhorse case. Third and perhaps most breathtaking, it uses novel reasoning to strike down as unconstitutional a sixty-year old statute from a sexy and well-monied field of law which has become integrated into daily use and application by lawyers and corporations. Consequently, I’m reasonably confident that we will be seeing In re Tam on the SCOTUS docket next year.

Hat tip to @michael-drew for sending me notice of the decision earlier today.

Image by Mike Licht, NotionsCapital.com Notes:

  1. It turns out, criticism of this name has been underway for nearly my entire life. []
  2. The name was originally used for the franchise as early as 1933 when it was based in Boston, and selected to distinguish the football team from Boston’s baseball team nicknamed the “Braves,” who currently play in Atlanta and also endure some criticism, albeit less intense, for their continuing to use a racially-specific nickname. []
  3. The Federal Circuit seems at first blush like the proper place for the Blackhorse appeal to have gone, so I don’t rightly know why it’s before the Fourth Circuit, but I’m not litigating the case so there may be a wrinkle I don’t know or haven’t researched yet. []

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63 thoughts on “A Belated Hanukkah Gift For A Wealthy Man

  1. The obvious question from a non-lawyer would seem to be, “Does it matter that ‘The Slants’ is a name chosen by a group of Asian-Americans for themselves, while ‘the Redskins’ was chosen by a group of white men for a group of (now, at least) predominantly black players?”

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    • Further confounding this question a bit is the fact that ‘Slant’ need not be a slur (though in this case it is and the band stated they wanted to reclaim it).

      There was a riot grrl band called Slant 6, after the engine design- had it been six Asian players, could they wink-wink nudge-nudge their way into claiming the same? Or that they named themselves in tribute to Pavement’s Slanted & Enchanted album?

      Or, there was an all-female punk band called The Slits. I’m sure they wink-wink nudge-nudged that one too (they called the album “Cut”), but clearly the name was meant to be somewhat outre.

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    • I doubt that it would. Having the government determine that some people, selected on the basis of race, are able to legally make a certain type of speech while others are not is running into strict scrutiny from both directions. The question remains whether or not preventing people from having offensive trademarks serves a compelling state interest in the least restrictive way available. It’s unlikely that many courts will find that a compelling state interest exists here in the first place.

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      • “Having the government determine that some people, selected on the basis of race, are able to legally make a certain type of speech while others are not is running into strict scrutiny from both directions. ” Perhaps so, but it’s only really one group that is getting crap for it.

        Tell me the number of hate speech prosecutions against minorities.

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        • This is out of date, but here is a piece about blacks being arrested for hate crimes disproportionately higher than whites:
          http://www.wnd.com/2001/03/8380/

          This is more current, but is reported hate crimes rather than arrests or prosecutions. See Table 9 for a breakdown of offenders by, inter alia, race:
          http://www.bjs.gov/content/pub/pdf/hcv0311.pdf

          I was unable (in an admittedly cursory search) to find numbers for actual prosecutions, but it is apparent that the category of ‘hate crime’ does not apply only to whites outside of certain groups’ fantasy lives.

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          • Your first link is completely counter to your comments. In the first paragraph:

            The FBI’s “Hate Crime Statistics” for 1999 show that 2,030 whites were arrested that year for “hate crimes” against blacks, compared to 524 blacks who were arrested and charged with a “hate crime” against whites.”

            Nowhere did I say “proportionally”.

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            • No, you went farther than that and asserted that non-whites aren’t really being targeted by anti-hate crime laws at all. Then provided numbers indicating that a fairly small number of people are arrested for hate crimes, and of those people the group you claim isn’t really targeted by such laws is in fact arrested at a higher rate than the group that you claim is targeted. If that doesn’t prove you wrong here, what kind of numbers possibly could?

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              • I am reminded of the good old usenet days of endless arguments with impressively mobile goal posts. In this case we have gone from “it’s only really one group that is getting crap for it” to a complaint against using per capita rather than absolute numbers: classic usenet bobbing and weaving. It makes me feel young again.

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                • Do you know where to get hate speech data? Hate crime data is easy for us to find, because it’s tracked by the FBI. I’m sure there’s a Canadian or French authority that tracks this stuff, and they probably do it by race of victim and offender.

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                • You’ve changed your argument again. The last time around you were complaining because the absolute numbers for whites was higher than the absolute numbers for blacks, while pretending to be incapable of comprehending why absolute numbers aren’t relevant. Now you seem to have abandoned that tack, and are now complaining that the data was for arrests rather than prosecutions, apparently in the belief that while cops are racist assholes, prosecutors are a bunch of hippie lefties looking for loopholes for blacks. OK, sure. Whatever. If you want to pretend this, fine, I’ll go along with the gag. But I can’t help but notice that you haven’t actually produced any data, substituting instead Trump-lite bluster. My admittedly cursory search was for prosecutions, and but I didn’t find that data. What have you got?

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                  • “You’ve changed your argument again”

                    No, I didn’t. You posed arrest data rather than prosecution data. I misread your post when you talked about disproportionality, and then I commented “what has proportionality got to do with anything”. That seemed to get you down a wrong path and I apologize for the confusion.

                    “Now you seem to have abandoned that tack, and are now complaining that the data was for arrests rather than prosecutions” Err, no that was my original point. Read it again.

                    “My admittedly cursory search was for prosecutions, and but I didn’t find that data. What have you got?” Why would I be asking this community if I HAD any of this data? I’d just cited the work.

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              • 1) I asked “Tell me the number of hate speech prosecutions against minorities.” which Richard didn’t respond to. He posted ARREST info. It was my error to not read his comment “disproportionally” and why “I wrote “what have proportionally to do with anything”, but STILL, it has nothing to do with my assertion of PROSECUTIONS. You know, cause cops don’t prosecute folks.

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                • I can only think of one white guy getting prosecuted for this, and he was perpetrating a crime on another white guy.
                  It made the local news, because apparently beard cutting is sensationalizable.

                  ETA: Okay, an Arab guy also may eventually get prosecuted for threatening someone. He’s white, but the guy he threatened was also white.

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      • In a trademark case, the government is not determining who can “legally make a certain type of speech.” Dan Snyder can call his team the Redskins, the Wops, or the Niggers if he wants, and the government can’t do squat, just as the band can call itself the Slants or the Chinks, or the Yellow Peril and the government can’t do squat. What is at stake is whether someone else can put out “Redskin” tee shirts or other geegaws without Dan Snyder’s permission — in short, whether Snyder can have a government-granted monopoly on certain speech. While the First Amendment seems to me to be relevant, the analysis of whether one can have a government-granted and enforced monopoly on speech can’t be the same as the analysis that informs whether a speaker can be prevented from speaking.

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    • In non-legal contexts it certainly does. This is the whole in-group/out-group distinction, as well as punching up versus punching down. This is why blacks get use the n-word, to the dismay of certain whites who desperately want to use it, but aren’t quite willing to face the obloquy that their open use of it would entail. But legally? Good question.

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    • I agree, something with the word “trade” right in it, sure seems commercial.

      Leaving that aside for a moment: is there any argument to be made that a bandname may be more like “pure speech” than a sports team name is, since a bandname is part and parcel of the artists’ art (and art is pretty much definitionally “pure speech” in my understanding); whereas a sports team’s name is more blatantly part of their “commerce”? Like, you can call a sports team mostly anything and it doesn’t really make a statement; but The Sex Pistols are, in part, The Sex Pistols because they are CALLED “The Sex Pistols” – call the same band with the same songs, “Herman’s Hermits”, and a different statement is being made.

      Or would that be a spurious distinction?

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      • I concur with Glyph, although in doing so I can already see a big fuzzy line that would exist between art & trade, & that is even before we address trademarks with innuendo.

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      • Seems spurious to me. Even putting aside the fact that there’s no “unless they’re doing something tacky like trying to make a profit” exception to the First Amendment, football and music are both forms of entertainment. A football game, like a concert, is held to give the audience an experience, and the name affects that experience in some small way. It’s a highly stylized statement about the nature of the team, much like a band name. Sure ,the game would be more or less the same if the team had a different name, but really, you could say the same about a band name.

        Judges are going to rule how they want to rule, but I don’t see any rational basis for privileging one over the other.

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        • I wouldn’t call it spurious, per se, but in this case I generally agree with Brandon; I don’t see language that can differentiate one from another in a legal sense, not without introducing more loopholes than we’d like and probably also excluding some folks we wouldn’t like.

          I think they’re both commercial speech.

          We can still argue about the extent we should allow folks to have free commercial speech, of course.

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        • I don’t see any rational basis for privileging one over the other.

          You don’t? Really?

          Many aspects of commercial speech are deeply regulated to ensure (for example) accuracy in advertising. It’s why a wine made in California can’t call itself “Champagne”, why cigarettes can’t be marketed near schools, etc, etc., etc.

          It’s a well established and largely uncontroversial distinction between the point of free speech (unfettered dissent, no thoughtcrimes, etc.) and the constitutional right to regulate commerce.

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  2. I won’t dispute that prohibition of certain trademarks is a form of speech regulation, and hence it makes sense for civil libertarians to take the position I presume most of them do.

    But it’s funny to consider that trademarks themselves are a government promise to suppress someone else’s speech on your behalf. Arguably, if rulings were made against the Slants and the Redskins, it would only “increase” the amount of free expression, because the band and the team could still use those names, but all other Americans would gain the right to slap those names/logos on knockoff merchandise.

    I’m being largely facetious here. My “argument” like that of a libertarian vociferously opposing same-sex marriage on the grounds that more marriages = more government involvement in private lives, which is bad, QED. But, you know, the irony has to be worth something.

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    • I think if you looked you’d find plenty of libertarians who advocate reforms in IP law. The court’s decision here was the principled stance; if the government is going to offer protection of this nature I don’t see how it can constitutionally discriminate against what it will and won’t protect based on content. I don’t agree with the ‘commercial speech’ decisions that might allow, for example, restrictions on tobacco advertising in some instances but I think this can easily be distinguished by the fact that trademarks protect the right to all manner of artistic speech as well as commercial.

      Of course the government could at any time decide it will no longer protect trademarks generally and there is nothing saying it has to.

      I will also cop to being a lifelong Redskins fan (with ambivalent feelings about the name issue) but I do think there are bigger and more important legal issues raised by the idea that the government can arbitrarily pick and chose what it will and won’t protect with a privilege it has created. I felt the same way about SSM prior to the issue becoming moot.

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      • Oh, I didn’t mean to suggest that libertarians like IP law; probably many/most of them think it goes way to far (excepting the John Galt types who take for granted that intellectual property is every bit as vital as other kinds).

        I was just amusing myself with the idea of a hypothetical (non-existent) libertarian who thinks every loss of intellectual property is a good thing, regardless of context. Like a “property is theft” communist who cheers on some despot’s decision that homeless man John Doe is prohibitied from owning anything — that’s one person down, 7 billion to go!

        As for SSM, I can’t think of a libertarian who made the argument I jokingly did there. Except perhaps one or two, out of contrarianism.

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        • Haha yea I sort of figured that part of the comment was of the facetious variety. Nevertheless, despite my sympathies towards a certain strain of libertarianism I know that glib arguments made under the libertarian banner aren’t exactly unheard of on the internet…

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    • But it’s funny to consider that trademarks themselves are a government promise to suppress someone else’s speech on your behalf.

      The basic argument here is that trademark infringement is a form of fraud, which is a) harmful to consumers because they think they’re buying something made by one company when in fact they’re buying something made by another company, and b) harmful to the trademark owner, whose brand may be damaged if inferior products are sold under it. In fact, the main standard for trademark infringement is how likely consumers are to be confused by it.

      The rationale for trademark protection is completely different from the rationale for patents and copyright.

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      • Right, but in order for that rationale to stand up to even limited scrutiny you have to agree with an underlying supposition that commercial speech is not pure speech.

        Which some folks reject. Not that anybody here is (yet, anyway).

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      • But doesn’t the trademark that Louis Vuitton holds function very differently than the one the football team holds?

        Louis Vuitton’s functions like you describe. But Washington’s football team isn’t harmed by some guy on a street corner selling home made gear. It doesn’t impact the team on the field. And I doubt any consumer would feel defrauded. I mean, unless the organization was to claim that they were in the business of making and selling jerseys of a certain quality and standard. But then we’d have to look long and hard at the NFL’s nonprofit status, no?

        For the analogy to hold, the trademark would have to stop some other group of football players from donning Washington Redskins gear and holding themselves out to be the real Washington Redskins football team.

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        • Washington’s football team isn’t harmed by some guy on a street corner selling home made gear.

          Other than that hurting the sales of authorized gear. And since authorized jerseys, sweatshirts, caps, etc. are sold at a huge markup over their cost that’s only sustainable because of trademark enforcement, that’s a genuine concern for the Washington organization.

          Note that this is entirely aside from quality issues, If anybody in the world could make and sell a Packers jersey, there would be the full range of quality from awful to superb, and they’d all be much cheaper than they are today. Trademark enforcement raises prices by eliminating competition.

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        • I started typing out this follow-up comment just after the edit window expired, but forgot to hit the submit button:

          Actually, now that I think about it some more, when it comes to licensed merchandising, trademark protection might be more like copyright than it is in the general case. When buying, say, a car, the logo identifies the manufacturer and thus conveys an important signal about the car’s quality. But when buying licensed merchandise, the logo is there for its own sake and doesn’t actually convey much about the quality, or even tell you who made the product.

          That said, it does still impact the team. As Mike points out, they make profits on authorized gear, which would likely be diminished by unauthorized sales. Even putting the owners aside, these profits presumably increase demand for players, driving up their salaries.

          I mean, unless the organization was to claim that they were in the business of making and selling jerseys of a certain quality and standard. But then we’d have to look long and hard at the NFL’s nonprofit status, no?

          I don’t think so. Non-profit organizations can sell stuff to raise money. They just can’t distribute profits to shareholders. Also, is merchandising done by the NFL? I would assume it’s done by the individual teams, which are mostly (all?) for-profit entities.

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          • It’s a combination of the two. There’s NFL-wide merchandising, which most teams are part of and which the league intended to be the sole conduit, but given the nationwide following the Cowboys have, Jerry Jones opted out of it [1] and has done quite well. If I recall correctly, Al Davis of the Raiders also opted out.

            Even putting the owners aside, these profits presumably increase demand for players, driving up their salaries.

            The salary cap is based on a percentage of total revenue, which includes merchandise sales (not sure if that includes Cowboys and Raiders merchandise or not.) So there’s a direct benefit to the players.

            1. Which was a big deal. There were lawsuits files by both sides before the dust finally settled.

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  3. This seems like a first-glance reasonable interpretations of trademarks that doesn’t actually make sense when you scratch the surface.

    Mind you, I don’t think the trademark office is the place to be waging a war against the offensive name of Snyder’s team. I think it’s a tactically poor choice as an opponent of racism, and I think it sets a nasty precedent that is better illustrated by the presumably more admirable slants.

    But even given that, it’s absurd to suggest the Trademark office is regulating Tam’s or Snyder’s speech. What it’s actually doing is regulating everyone else’s speech. Either way, Snyder can slap his racist logo on a bunch of football merchandise. But when it’s trademarked, nobody else is allowed to, by government decree.

    So if something is unconstitutional here, it’s not section 2(a) of the Lanham act. it’s the whole damned potato.

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    • But under existing law, the idea of having trademark protection in general has a much better chance of passing strict scrutiny than distinguishing between some trademarks that are good and some that are bad does. It’s much easier to articulate a compelling state interest.

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    • But won’t the upshot be that the name can’t be Trademarked ™ and not that they can’t use the name?

      If so, is then the theoretical project to flood the market with patently offensive merchandise so that the Redskins feel compelled to change their name to recoup lost revenues via government protection? What if the impact is not so great as people seem to think? Its like a libertarian thought experiment gone live.

      On the political side, I have no choice but to throw this in the Trump Dumpster as another thing he can point to when he talks about a “system” that is gamed by elites against the wishes of common folk.

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      • Someone who actually knows something about intellectual property law might correct me, but my understanding is that it means even less than this. The Federal Government maintains a registry of trademarks, set up under the Lanham Act, but trademark law is older than the Lanham Act and exists apart from it. Having your trademark registered creates a presumption that you own it, while defending an unregistered trademark involves proving this ownership. So if the registration of the Landover football team is revoked, this doesn’t mean that its name and logo are fair game for anyone who wants to sell a t-shirt. It merely means that any legal action by the Lancover team against the t-shirt vendor would require some extra steps. Once the work is done the first time, any later actions would simply cut and paste this stuff in. In other words, the trademark dispute is largely symbolic. Or I don’t understand the IP law issues. Either is entirely possible.

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        • My understanding is that your distinction between registered and unregistered trademarks is correct, but… I’m still not sure that it applies. We need Burt, here.

          One can make the legal case that something that is restricted from being registered as a trademark is by definition not able to be trademarked, but the language may be tricky.

          It may indeed be possible to have an unregistered trademark that is not possible to registered, but still possible to be legally recognizable as a trademark.

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          • Did someone send out a “Burt signal”? I find that amusing and I hope someone takes the time to draw up a graphic because even in this day and age of Star Wars VII, Batman is still incredibly cool and having my own “Bat signal” would rock.

            Basically, Richard Hershberger is correct. Were SCOTUS to reverse the ruling in the Tam case discussed in the OP, the PTO would follow through and revoke Federal trademark registration for the mark “The Washington Redskins” and similar associated marks such as the maroon-and-gold Indian head silhouette logo. Let’s call these the “Redskins Marks.”

            That would directly revoke the trademark registration at the Federal level. This would also set off a cascade of state-level registration revocations for the Redskins Marks as well. Internationally, some but not nations all require that a foreign mark be registered in some fashion in the mark claimant’s domiciliary nation before recognizing a foreign mark, and no I don’t know which nations fall into which category. The United States does not, but that’s not in play for either the rock group or the football team with questionable names under discussion. But for purposes of selling merchandise and otherwise using the Redskins Marks in other nations, those other nations that do demand home-country registration would also (perhaps only upon challenge) withhold whatever protection their laws previously afforded the Redskins Marks.

            After the cascade of revocations completed, we’d be left with a Delaware corporation, Pro-Football, Inc., which maintains its principal place of business in Landover, Maryland, and residual common-law trademark rights, but no Lanham Act trademark rights, in the Redskins Marks. So what could Pro-Football, Inc. do with its common-law-only trademark rights in the Redskins Marks?

            As notes above, it can still go to court and seek injunctions and monetary damages against third parties who might use the Redskins Marks without the (purchased or profit-shared) consent of Pro-Football, Inc. It bears a somewhat heavier burden of proof without the presumptions that come along with the statutory scheme, but a burden that could be met without too much difficulty — it would have to show, in each case, how the Marks were derived, how it or its predecessor-in-interest came to claim the rights originating in the Marks’ creator, and a continuous “use in commerce” of the Marks up through the time of the putative infringer’s use. After that, the case is pretty much the same as a statutory case in terms of the remainder of the plaintiff’s burden of proof — defendant’s infringement, defendant’s intent, plaintiff’s reasonable attempts to mitigate by way of demanding the defendant cease and desist, and resulting damages to plaintiff.

            What Pro-Football, Inc. would lose are the enhanced remedies made available to it under the Lanham Act, which are what make being on the receiving end of enforcement as scary as it is. Common law trademark claims don’t have attorney’s fee shifting: each party pays their own way, instead of loser pays as is the case in a statutory case. There are no nominal or statutory damages in a common law case. There is no trebling of damages in a common law case even if there is a showing of a willful violation of trademark. But there are still claims for actual damages and injunctions against future use of the infringed marks.

            The usual tools of the legal trade for trademark infringement are heavy-handed, time-consuming, laborious, and thus hugely expensive techniques. This is a reason that this segment of the profession is dominated by Biglaw firms (for shorthand, think about the Amlaw 100) and how they do things. For the trademark issues, Pro-Football, Inc. has been represented by the firm of Quinn Emmanuel, about whose precise position in the legal constellation lawyers may quibble but certainly falls within this category. If a firm like Quinn Emmanuel were tasked with some of the things that I, a small-shop lawyer in a firm not even large enough to warrant the sobriquet “litigation boutique,” am asked to tackle within a five-figure budget, it would be utterly at a loss. Pretty much nothing Quinn Emmanuel and its Biglaw Peers do have five-figure budgets, unless the litigation plan includes “Defendant capitulates completely and immediately,” in which case the budget might be under $100K. Not that they are incompetent, but it’s just not how they do things and it’s generally not what their clients want from them anyway. They leave small-potatoes cases for small-potatoes lawyers.

            So without Lanham Act remedies available, and with a more elaborate evidentiary showing needed to prevail, enforcing a trademark becomes substantially more inefficient from an economic perspective. Worse, every time a mark’s owner learns of an infringement on its marks and then fails to take steps to enforce its exclusive use of that Mark (generally for an economic reason), the mark is diluted in the marketplace, and a future infringer might look back on that incident the company chose to ‘let go’ and use it as evidence that the plaintiff’s claim to use of the mark is not exclusive at all and therefore there is no infringement in this new case.

            TL/DR: Does revocation of the Redskins Marks’ registrations mean that the trademarks will die? No. But it does mean that maintenance of the Marks will become substantially more awkward and expensive, and it increases the possibility that over time, the exclusivity of the Marks will erode.

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            • It’s worth pointing out, as I think Richard pointed to, that for these reduced protections to have a strong effect on Pro Football Inc.’s bottom line, there would have to be an expansion of unauthorized uses of the mark that PFI would otherwise profit from, if they pursued some equivalent. For this to happen, people would have to make fairly extensive use of symbols and names that are already widely regarded as highly offensive. I have no idea how much profit loss PFI faces from such actions, either now, or under the reduced protections. But my hunch is that this was just never a major bottom-line issue for PFI, but instead a symbolic one. But within the ongoing battle over this largely symbolic issue, I’m not sure how important the symbolism of being on the wrong side of this court case until now even was to the company before the reversal.

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              • …Though I’m willing to defer to nevermoor that this could have been much more of a problem than it looks at first blush. I’ve gotten the distinct impression that the owner thought there were workarounds to the problem in terms of the major marketing functions that rely on excluding use of the logo & name in particular. But that could be a bluff, or I could have been mistaken. Sounds like we may not find out. I’d be very surprised if SCOTUS reversed this decision.

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                • Upon further review, the impact may actually be even less than Richard had indicated.

                  According to this article merchandising revenues are shared equally among all the teams.

                  while NFL team revenues come from a variety of sources, more than half of all revenues are attributable to a shared NFL pot, comprised mostly of national broadcasting and licensing deals. Furthermore, “Market size and performance do not matter to the pool of national revenues — all teams get an equal share. Any impact on the Redskins impacts the whole NFL. It’s a fairly socialistic league. From a revenue perspective, the primary impact of the TTAB’s decision will be felt in the shared licensing revenues.”

                  So, in effect, Nike licenses Redskins (and all the other teams’) trademark and makes stuff. Nike (and others) still have valid trademarks, so containers full of counterfeit NFL goods (including non-trademarked Redskins stuff) would still be stopped (when possible) at the border, and sites illegally selling NFL gear would still be subject to closure, etc. The NFL already deals with massive trademark infringement, and the loss of Redskin protection (if I’m reading this correctly) probably wouldn’t matter.

                  Also, the total hit to the value of the club – even in the unlikely event of the brand value going to $0 – is only $145M our of $1.7B.

                  So… net/net? This lawsuit is only relevant if it moves one of five (or so) actors: Snyder (nope), The NFL Club of owners (nope, unless the following object): Nike, Verizon, Anheiser-Busch. And, of those three, only Nike would stand to lose any money… but given the nature of the revenue sharing and enforcement – I don’t see the risk as worth considering (from a financial view).

                  I now have a better idea of Snyder’s ability to feel he can weather this storm… there really isn’t any financial impact (to anyone) – even in the worst possible case imaginable.

                  In scientific terms, I’d say he enjoys herd immunity from the other trademark vaccines.

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        • In my opinion, they would have an impossible (if not, perhaps, procedurally-barred-to-the-point-of-sanctions) time defending a trademark if the ruling stands that it is not registerable.

          While you’re right that trademarks can exist without registration, that’s different from them existing after a judicial determination that they are unregisterable.

          As to ‘s point, though, the real issue is the franchise value depends in meaningful part on its IP and marketing rights, so there’s very little chance the team would stick with a name that cost it those rights (especially when the alternative would be to change names and likely move a lot of merchandise to fans wanting to be up-to-date)

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          • So possibly a great boon to Daniel Snyder. He gets to stand-up to the folks going after a local icon *and* begrudgingly change the name because the Supreme Court told him too… whereby he captures $$ in new revenue – probably only changing the name slightly to something like, Washington Skins

            My Chicago Blackhawks are managing this much better and I expect it is maybe 2-4 years before they change their name from the Chicago Blackhawks to the Chicago Blackhawks.

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  4. Okay, trademarks are now free speech.
    What effect does this have on the corporation using a barely-modified goatse symbol as their logo?

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