Liberals determined to censor the Washington Redskins are rather humorless but they sure sparked a funny legal battle.
The government’s decisions to revoke the Redskins trademark registration, after repeated complaints from some American Indians and assorted language policemen, has ignited a remarkably lurid legal debate.
Last week, news broke that the wicked football team’s lawyers cited a slew of vulgar names that obtained trademark registration to convince a federal appeals court that the decision to pull theirs was arbitrary and capricious in violation of the First Amendment.
On Friday, the normally dour ACLU joined the fun — with a vulgarity filled 37-page amicus brief asking the United States Court of Appeals for the Fourth Circuit in Richmond to overturn a lower court’s decision upholding revocation of the Redskins trademark by the U.S. patent office.
Arguing for restoration, the ACLU served up a slew of names that were rejected for trademark registration to contend the feds lack any consistent standards for evaluating applications.
Voila.
UPPITY NEGRO
MANAGING YOUR INNER A**HOLE
CUM
PUSSY POWER (rock band, not a girlfriend’s motto)
BIG COCK
THE COMPLETE A**HOLES GUIDE TO . . .
WANKER
THE SLANTS
Indeed, it is hard to imagine why all these names were rejected but others cited by the Redskins’ brief, like DICK BALLS, got the green light from the United States Patent and Trademark Office.
In some cases, names are accepted for one product but nixed for another. For example, WANKER beer was rejected but WANKER clothing (raincoats for flashers?) got trademarked.
The government can not just pick and choose as it pleases without violating constitutional guarantees of free speech, ACLU lawyers contend. And the prohibition of disparaging names is unconstitutional anyway.
“Section 2(a) of the Lanham Act [which codified federal trademark law regulations] not only condones but mandates viewpoint-based discrimination in the registration of trademarks, by prohibiting the registration of any trademark interpreted by the U.S. Patent and Trademark Office (“PTO”) to ‘comprise [] immoral, deceptive, or scandalous matter; or matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute.’ Furthermore, the constitutional harms caused by Section 2(a) are magnified by its vague and subjective terms, which provide no meaningful notice to speakers as to what speech the government will find acceptable, thereby risking—and in this case, demonstrably producing—inconsistent and discriminatory application of the law.”
Inconsistent indeed.
UPPITY NEGRO is offensive and unfit for recognition but CRACKA ASS SKATEBOARDS, another trademark name that the Redskins dredged up, is pristine enough to register?
DICKBALLS is kosher but not BIGCOCK?
Go figure.
Of course, lest anybody consider them insensitive the ACLU has taken great pains to emphasize it takes offense at the DC football team’s name despite supporting them on free speech grounds.
Staff attorney Esha Bhandari recently balanced their two positions with an aptly titled blog post, “You’re Not Wrong You’re Just An Asshole.”
Somebody should trademark that!