No, Trademark Trolls Collecting Various Fake Names For A Washington Football Team Will Not Get In The Way Of The NFL Team's Renaming

from the not-how-any-of-this-works dept

As was widely expected, the NFL team based in Washington DC, formerly using the "Redskins" as their team name, will be renaming themselves after years of people pointing out that the name is racist, and the team being so obnoxious that it has literally sued native Americans who had previously sought to cancel the team's trademark. Either way, what finally got the Dan Snyder-owned team to ditch the name was... money, of course. The biggest sponsors of the team began to threaten to pull support, and that finally convinced Snyder to do something he should have done a long time ago.

Of course, the story that many are focusing on following the official announcement to find a new name is... the fact that some dude has been busy filing trademark applications on a bunch of possible replacement names.

And if you don't understand trademark law, that might sound legit, except that none of this is getting in the way of the team picking a new name. We've talked in the past about how people always try to rush in and trademark stuff in hopes of getting some crazy payday, but that's not how trademark law works. You can apply for any trademark (though the costs will add up) but you're unlikely to get it unless you have actual plans to use it in commerce and you're not just registering it as a troll.

To his credit, Philip Martin McCauley at least claims that he understands all this and has even set up a website (which I'm not linking to) which offers merchandise featuring the logos of his totally fake Washington DC football team names. That at least gives him a modicum more defensibility than your everyday trademark troll.

United States law requires that the holder of a trademark actually use the term in question.

McCaulay is aware of the provision, which is why he’s spent thousands of dollars creating team merchandise to back up his claims.

In doing so, he said he’s no ordinary trademark squatter, a term with negative connotation used in similar situations.

“A squatter reserves a name with no intention to use it,” McCaulay said. “I went to the extreme of buying a lot of merchandise, making it my brand, and selling it.”

But the idea that this will, in any way, prevent the actual football team from choosing a name it likes is pretty silly. Perhaps the team would pay off McCauley just to avoid the hassle, but it won't be because of any legitimate claim to the trademark -- just a pure nuisance fee to avoid bad press and wasteful litigation. And, to be honest, Dan Snyder has never struck me as someone who cares much about avoiding bad press or wasteful litigation.

Filed Under: football, martin mccauley, philip mccauley, teams names, trademark, trademark trolls, use in commerce
Companies: nfl, washington redskins

Washington Redskins Appeal To SCOTUS On Trademark And Seek To Tie Their Case To That Of The Slants

from the teamwork dept

We've talked quite a bit around here about the saga of the Washington Redskins trademark cancellation. The long-held mark by the football team was cancelled after a group of Native Americans petitioned against it, claiming that the team's name was disparaging of their people. After I, dare I say, flip-flopped from cheering on the cancellation to having the team itself change my mind with a delightfully vulgar ruling, which demonstrated that the USPTO grants all kinds of marks on "offensive" terms, the current status of the trademark remains cancelled. Well, the team has now appealed to the US Supreme Court, not only seeking to have its own case reviewed, but also seeking to tie their case to another that we've talked a bit about, that of the Asian music group, The Slants.

The Slants' case is different from the Redskins', with the music group never getting its trademark registration, also based on the notion that its name was disparaging of the very group of people who comprised the band. An appeals court declared the refusal of the band's trademark applications was a First Amendment violation, rightly. But the USPTO has appealed to the Supreme Court. The Redskins, meanwhile, have petitioned the Supreme Court to take the two cases in tandem, arguing that the slight differences between the two would give the court a well-rounded look at the question of whether blocking disparaging trademarks was a constitutional violation.

If this Court grants certiorari in Tam, the Court should grant certiorari before judgment here to consider this case as an ideal and essential companion to Tam. This Court repeatedly has granted certiorari before judgment on those occasions, like this one, when the consideration of complementary companion cases offers the best way to decide important questions of constitutional law. As the government acknowledges,
this case squarely presents the same First Amendment question presented in Tam, a question of undeniable, fundamental national importance.

Tam is the short-form reference to The Slants' case. It's a savvy move by the team, seeking to pair its case with that of The Slants, who by any measure ought to be seen as deserving of more sympathy generally than the football club. After all, there does seem to be a difference in texture between a group of Asian people who want to call their band The Slants and a football team owned by Dan Schneider that wants to have an admittedly racist term for Native Americans serve as its team's name. But the question of law is certainly similar enough that I would agree it would make sense to review both cases together. Under the law, either refusing marks based on disparagement is constitutional or it isn't. There's no provision for who is applying for, or holding, the trademark in question.

Another reason it's a savvy move by the Redskins is that The Slants are coming into the SCOTUS review having won its appeal. In their case, it's the USPTO doing the appealing to SCOTUS. The team likely sees the band having an easier time getting a win before the court, having won on appeal, and is arguing that if The Slants' case holds up, then the cancellation of the team's trademark would make no sense.

And the Redskins are right. The team's name may be antiquated, but under the law, the government has no business applying its schizophrenic sense of morality to speech under the First Amendment.

Filed Under: first amendment, free speech, offensive, redskins, scotus, slants, supreme court, trademark
Companies: washington redskins

Redskins, Who Should Get To Keep Their Racist Name, Still Jerks For Running Fake Grassroots Support Website

from the jerkskins dept

As we've previously discussed the trademark issues surrounding the Washington Redskins team name, and as I've personally flip-flopped on the question like I was running for public office to represent salmon on a dry dock, none of that coverage has ever called into question that the team is run by some number of jackasses. Dan Snyder, who owns the team, has gone out of his way to attack all kinds of media and blogs over coverage of the team and its antics. Well, back on the name of the team, even if they got a big gift from a court in a related lawsuit, it turns out the team has been engaging in a bit of subterfuge to try to drum up support for the mascot as well.

But, thanks in part to an errant tweet, the team has been found out. Fans of the team and its name may recognize the Twitter account "Redskins Facts", which purports to be a grassroots conglomeration of fans that back the name of the team.

Redskins Facts is supposedly a grassroots organization aiming to create support for a mascot named after scalping Native Americans. However, it is run by a PR firm, not fans, and the team has carefully skirted around precisely designating it as independent. As SBNation points out, the Washington Post fact-checked the site’s claims and found them misleading.

While Washington was in a close game with Chicago, some suspicious tweeting went down. These two tweets, sent from two purportedly different organizations that have no affiliation with each other, look pretty similar. Given the exact similarities between the two tweets, this is almost certainly a copy/paste job.

pic.twitter.com/j1nJm4Rx6H

— Dan Steinberg (@dcsportsbog) December 13, 2015

Oops. While many have long suspected that the PR firm running the Twitter account had been hired to do so by the team, because there isn't another logical explanation that would make any sense, this copy/paste job between the team's official account and the "Redskins Facts" account seems to confirm it quite nicely. The Redskins Facts website, indeed, has an entire "About Us" section that is nothing short of a series of misleading claims that would probably be more appropriately called lies.

So, even as the legal side of things is going to end up leaving the Redskins to trademark its dumb, racist team name, the fact that the team pulls these kinds of antics ought not be lost in the meantime.

Filed Under: astrotufing, dan snyder, grassroots, pr, redskins, redskins facts, trademark
Companies: washington redskins

How The Redskins' Delightfully Vulgar Court Filing Won Me Over

from the team-redskins dept

I've never really made it a secret how much I loathe the Washington Redskins organization. I dislike their tasteless, stupid, racist team name. I hate their dumb, overly-litigious owner. And I really have nothing but disdain for the team's attempt to control public perception by strong-arming the media. And, in past posts, I've come down on the side of the government when it cancelled the team's trademark for its name, declaring that the government shall not be in the business of granting trademarks for terms that are disparaging. I was slightly less comfortable when the DOJ made a weak argument that denying the trademark wasn't a First Amendment violation, but, still, no Redskins trademark was a good thing in my mind, partially because I hate the Redskins.

But I hate hypocrisy more. And government hypocrisy is the most delicious hate-meal I've ever found, which is why I'm jumping ship and declaring myself on team Redskins. What hypocrisy am I talking about? Well, the government's hypocrisy as delightfully and vulgarly laid out in this filing the team put in its appeals case.

The PTO has registered hundreds if not thousands of marks that the Team believes are racist, or misogynistic, vulgar,
or otherwise offensive. By way of example only, the following marks are registered today: TAKE YO PANTIES OFF clothing; DANGEROUS NEGRO shirts; SLUTSSEEKER dating services; DAGO SWAGG clothing; DUMB BLONDE beer; TWATTY GIRL cartoons; BAKED BY A NEGRO bakery goods; BIG TITTY BLEND coffee; RETARDIPEDIA website; MIDGET-MAN condoms and inflatable sex dolls; and JIZZ underwear. These are not isolated instances. The government routinely registers pornographers’ marks: TEENSDOPORN.COM, MILFSDOPORN.COM, THUG PORN, GHETTO BOOTY, and BOUND GANGBANGS are but a few.

It's hard to decide exactly which part of this is more fun: the clearly gleeful way the filing lists these apparently valid trademarks or the image in my head of a government mid-level employee stamping "GRANTED" on an application for Big Titty Blend Coffee. Regardless, what's made clear in this filing is that the government's unwillingness to grant a trademark on vulgar or disparaging terms is wildly inconsistent. The term Redskins, after all, can't be said to be any more offensive than "Dago." What appeared to be a stance by the PTO on grounds of value instead now looks to be wind-socking for the outrage gale. And for the Redskins organization, that sucks and has to be massively frustrating.

And for the argument I had previously made -- that government ought not endorse the term "Redskins" through granting it a trademark -- to work, the government would need to be consistent on the matter. Otherwise, it is picking and choosing speech as a matter of government acknowledgement. It appears the PTO has proven itself incapable of this consistency, again, per the filing.

No one today thinks registration reflects government approval. But if this Court holds that it does, how will the government explain registrations like MARIJUANA FOR SALE, CAPITALISM SUCKS DONKEY BALLS, LICENSED SERIAL KILLER, YID DISH, DIRTY WHOOORE CLOTHING COMPANY, and MURDER 4 HIRE?

Now, look, is the term Redskins an antiquated, racist term? Absolutely yes. Is it still worth hating Daniel Snyder for making this the hill he wants to die on, rather than simply coming up with another team name? Oh, for sure. But should a government be applying standards of offense to trademark registrations when its shown itself to be incapable of having any consistent standards in doing so? No, I don't think it should any longer. I did think so, but I was wrong.

So...sigh...go Redskins, I guess.

Filed Under: first amendment, free speech, redskins, trademark, uspto, vulgarity
Companies: washington redskins

DOJ Steps Into Redskins Trademark Lawsuit, Saying It Doesn't Violate First Amendment To Deny 'Disparaging' Trademark

from the constitutional-fights dept

No matter what you think of the various fights over whether or not the Washington NFL professional football team should be named the Redskins, the legal side of the fight is raising a fairly interesting First Amendment question. As we've discussed in the past, trademark law (notably 15 USC 1052(a)) says that the Trademark Office has the right to deny a registered trademark on "matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." The US Patent and Trademark Office used that tidbit to cancel the registration on the Redskins a few months back (a few months after rejecting a mark on "Washington Redskin Potatoes" using similar logic). Dan Snyder's football team is going to court over this and raising a few arguments, though the one that is most interesting to me is whether or not that clause in the Lanham Act violates the First Amendment. As the complaint argues:

The terms "disparage," "may disparage,""contempt," "disrepute," and "may bring... into contempt or disrepute"—which the TTAB acknowledges are not defined in the statute or in its legislative history—are unconstitutionally vague. The statutory language of Section 2(a) fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits, and therefore conveys no ascertainable standards for trademark owners to follow. The statutory language of Section 2(a) thereby encourages and authorizes arbitrary and discriminatory enforcement by leaving the Board with virtually unfettered discretion to deny registration or to cancel registrations, even in situations such as the one presented here, where for over eighty years Pro-Football has worked to establish valuable rights in its marks, and has owned its initial registration in the series of marks, for over forty years. Section 2(a) thus effectively chills First Amendment free speech rights.

The terms "disparage," "may disparage," "contempt,""disrepute,"and "may bring... into contempt or disrepute" are unconstitutionally overbroad and sweep under their rubrics speech that is not capable of being legitimately regulated by the government. There is no core of easily identifiable and constitutionally proscribable conduct prohibited by Section 2(a). Rather, to the extent there are any legitimate applications of Section 2(a), they are few in comparison to the substantial unconstitutional applications of the law that impermissibly restrict protected speech. Section 2(a) thus chills protected speech that falls within its overbroad language.

The team makes a further argument that the name is a form of protected speech and removing the trademark stifles that speech, but that's a slightly different issue (and one that I don't think is as strong).

The DOJ has now stepped in specifically to defend the constitutionality of that section of the Lanham Act:

The United States will defend the constitutionality of the federal statute.

“The Department of Justice is dedicated to defending the constitutionality of the important statute ensuring that trademark issues involving disparaging and derogatory language are dealt with fairly,” said Acting

Assistant Attorney General Joyce R. Branda for the Civil Division. “I believe strongly in the rights of all Americans to celebrate and maintain their unique cultural heritage. Going forward, we will strive to maintain the ability of the United States Patent and Trademark Office to make its own judgment on these matters, based on clear authorities established by law.”

From a pure legal wonkery position, this whole thing is fascinating. I have to admit that specifically putting into law that the USPTO can deny trademarks based on "matter which may disparage" or which might bring "persons, living or dead, institutions, beliefs, or national symbols... into contempt, or disrepute" bothers me on a basic First Amendment level. Asking bureaucrats to determine whether or not content is disparaging or might bring someone into disrepute certainly seems to raise some First Amendment issues. It certainly doesn't seem to fall into the very limited categories of "content-based restrictions" that the Supreme Court has allowed.

That, however, is only half of the equation. The more important half is the question of whether denying a trademark registration is a content-based "restriction on speech." And that doesn't seem even close to reasonable. There are tons of trademarks that are denied all the time, and it seems perfectly reasonable to say that the USPTO can deny a trademark. If it's somehow argued that denying (or cancelling) a trademark registration can be seen as a First Amendment violation, then would the USPTO be able to reject any trademarks? Or would it always face a First Amendment challenge?

And that brings us to the final point. Cancelling a trademark registration doesn't actually block any form of speech. The team can still use the name (and could even still claim a common law trademark, allowing it to block most others' attempts to use the mark anyway -- it basically just limits the ability to get monetary damages). In fact, the trademark lawyer for the Redskins, Bob Raskopf, more or less made this point himself in response to the USPTO cancelling the registration, noting (among other things) that:

This ruling – which of course we will appeal – simply addresses the team’s federal trademark registrations, and the team will continue to own and be able to protect its marks without the registrations.

He's right, but it also undermines the First Amendment question raised in the appeal, and more or less makes the DOJ's case for it on this particular point. If no speech is hindered or stopped by the cancelling of the registration (or a denial of a registration) based on 1052(a) then where is the First Amendment problem? It may be a "content-based" regulation, but it's not clear that it's a content-based restriction on speech.

Either way, as a First Amendment issue, it's an interesting one to watch. Should the Redskins prevail, and the DOJ fail, on this particular point, there could be some other interesting challenges to rejections of trademarks -- or even potentially patents or copyrights as well. Saying that rejecting a registered form of intellectual property is a violation of the First Amendment could open the door on a series of troubling legal questions. Still, this isn't the only case exploring this issue. A case in front of CAFC currently, involving the USPTO rejecting a trademark for the band "The Slants" via this same part of the Lanham Act has opened the door to it being called unconstitutional. At least one judge seems to agree with the Redskins' take on this:

At the Federal Circuit, Tam and attorney Ronald Coleman are swimming against 34 years of precedents. But it sounded from Friday's argument as if at least one judge wants to reconsider them. Judge Kimberly Moore described the seminal decision upholding Section 2(a) of the Lanham Act as outdated, cursory and a candidate for en banc review in light of "an immense evolution of Supreme Court jurisprudence on this point."

In that case, one of the judges pointed out, as we have, that rejecting the trademark doesn't limit speech, but in fact expands it by not restricting it via the trademark. After some coaxing from Judge Moore, the lawyer for The Slants' Simon Tam disagreed with that point. However, again, the others on the panel seem to feel as we do that it's not clear what speech is being stifled here. According to Judge Kathleen O'Malley:

"Isn't there a difference, though, between prohibiting speech on the one hand, which very much would be censorship, and refusing to give one a monopoly on a particular mechanism for that speech?"

Indeed, there is. And it seems likely that the Redskins are going to lose on this point as well.

Filed Under: disparaging, doj, first amendment, free speech, lanham act, redskins, slants, trademark
Companies: washington redskins

USPTO Cancels Trademark Registration For Washington Redskins

from the finally dept

Given that I've been quite vocal about my interest in the Washington NFL team changing its name from the disparaging "Redskins" moniker to something more civil, you might think that I'm doing some kind of happy dance in my office now that the USPTO has rescinded the trademark registration for the team (something I had predicted, along with others, a while back). Look, I won't pretend like any steps moving us closer to a world where that team's name is changed don't make me happy, but I do take the counterpoints seriously. I don't particularly care for a world where speech deemed "offensive" can't be uttered, nor do I generally like when the government sticks its nose in most things. I understand that completely -- I just think there are some serious arguments for ensuring the government doesn't grant exclusive rights to organizations on the backs of horribly racist terms. So when the USPTO says they're removing the registration because the term is disparaging and they don't want to grant rights for the team to seek trademark damages to that kind of language in all of our names, I happen to think that make sense.

“We decide, based on the evidence properly before us, that these registrations must be cancelled because they were disparaging to Native Americans at the respective times they were registered,” the board wrote in its opinion, which is here.

Again, if you think this is yet another example of government's intrusion on free enterprise, I get where you're coming from. After all, damn it, we wouldn't need to have come to this point if the citizens of D.C. had risen up and refused to go to games until the name was changed. That would have been a far preferable solution. That said, the provision in trademark law forbidding marks of a racial nature is fairly clear and I think there's fairly good reason for that language. As plaintiff Amanda Blackhorse said:

“I am extremely happy that the [Board] ruled in our favor,” Blackhorse said in a statement. “It is a great victory for Native Americans and for all Americans. We filed our petition eight years ago and it has been a tough battle ever since. I hope this ruling brings us a step closer to that inevitable day when the name of the Washington football team will be changed. The team’s name is racist and derogatory. I’ve said it before and I will say it again – if people wouldn’t dare call a Native American a ‘redskin’ because they know it is offensive, how can an NFL football team have this name?”

This ruling isn't only in the name of being politically correct to Native Americans, it's about a government office that purports to represent all of us granting exclusive rights based on language that an overwhelming majority of outlets define as racist. The public can and does have an interest in how government represents us and granting trademark to that kind of term just isn't okay.

Now, before anyone gets their First Amendment panties in a twist here, the team doesn't lose the right to use the name and even keeps its registered mark during the appeals process, which has already begun.

The team will almost certainly appeal the case, and it will be able to keep its trademark protection during appeal. Losing the trademark would not force the team to change its name, but it would allow anyone who wanted to use “Redskins” on merchandise or through other means to do so, which could cost the team — and, because of the NFL’s revenue-sharing model, other NFL teams — “every imaginable loss you can think of,” as the team’s lawyers argued in the original case. For that reason, the trademark has long been thought of by opponents of the team’s name as the easiest avenue to changing it.

If Dan Snyder, a man who has filed lawsuits claiming anti-semitism, wants to stick to his racist guns and keep the team name, he can. He just doesn't get the ability to seek damages that a registered mark affords him. Speech is actually opened up by this ruling, not infringed upon. In other words, for those of you that think the team name is awesome and/or the USPTO shouldn't be getting involved in this, all is not lost. The racist term you wish to protect can still be used by the team if it wishes, it's just that those of us who think the government shouldn't be sanctioning that kind of thing are finally being represented.

Filed Under: dan snyder, free speech, redskins, trademark, uspto, washington redskins
Companies: washington redskins

Redskins Owner Dan Synder Realizes He Was Going To Lose His Defamation Lawsuit Badly, Drops It

from the that's-what-we-call-a-punt dept

Remember Dan Snyder? The much-maligned owner of the Washington Redskins who sued a small newspaper for running a clearly satirical article about him? The same owner of the Washington Redskins who also argued that a picture of him accompanying that article that added scribbled devil horns and goatee was somehow antisemitic? The lawsuit alone massively increased attention to the article and its jokes about Snyder. Just last week, even Snyder finally admitted that it was "possibly" a tactical error to sue.

Well, Verve lets us know that Snyder has finally dropped the lawsuit, most likely because someone finally explained to him that he had almost no chance of winning, and not only would he lose in court, but the longer the case went on, the worse the public relations nightmare would be. It's pretty funny that he's claiming that he's doing this "to focus on the coming football season and the business at hand." Yeah, and not losing massively in court, for which you might have had to pay Washington City Paper's legal fees as well.

Amusingly, Snyder also declares -- against pretty much all evidence -- that he's been "vindicated" in filing the lawsuit, because Washington City Paper:

"admitted that certain assertions contained in the article that are the subject of the lawsuit were, in fact, unintended by the defendants to be read literally as true."

Um. That's not vindication of the lawsuit. That's WCP explaining what everyone else in the world already knew: the article was satire, designed to make fun of Snyder. Saying that the points weren't all meant to be read literally as true isn't an admission. It's pointing out that Snyder is apparently unable to comprehend basic satire.

WCP, for its part, says that it's happy the case has been dismissed, and while it could use DC anti-SLAPP laws to go after legal fees, it'd rather the case just be over. Of course, one good thing about all this happening in Washington DC? It's really helped some folks in Congress realize that we need a federal anti-SLAPP law.

Filed Under: anti-slapp, dan snyder, defamation, redskins, washington city paper
Companies: washington city paper, washington redskins

Washington Redskins Won't Let Washington Post Blogger Show Photos Of Upset Fans; WaPo Caves

from the journalistic-integrity dept

We've already discussed how ridiculous it is that any mainstream publication agrees to the NFL's policies that effectively set rules for how they can report on sporting events. How can a publication claim to have journalistic integrity after agreeing to specific rules on what they will and won't report on concerning a news event? On top of that, we've pointed out how ridiculous one particular football team, the Washington Redskins, has become in dealing with fans. Despite having the longest record of continuous sellouts in professional sports, the Redskins have been suing over 100 fans who were unable to pay for their season tickets. The Redskins could have easily just resold the tickets (and, in fact, they are reselling the tickets). But also suing some of the team's biggest fans after they've been hit by the financial crisis? That's just obnoxious.

Lots of fans are pissed off at the Redskins this season, and a local radio station came up with a plan to get fans to wear paper bags over their heads during a recent game -- even going out and handing out a bunch of bags outside the stadium for just that purpose. Of course, gametime came and security confiscated most of the bags, saying that such bags are not allowed in the stadium. Still, Dan Steinberg, who writes the DC Sports Blog for the Washington Post, went around looking for such disgruntled fans. And while he didn't find many with paper bags, he did find other disgruntled fans displaying their... disgruntlement. These included t-shirts that were anti-Dan Snyder (owner of the team) along with some other things. Steinberg took photos of these protesters and posted them to his blog.

But not for long.

The photos soon disappeared, and the photo editor for the Washington Post admitted that the Redskins had called them claiming that taking photos of disgruntled fans was a violation of policy:

"The Redskins said he was in violation of his credentials for taking the photographs. We honored that request, because at the end of the day, they control access to their facility."

First off all, how ridiculous is it that the Redskins are so insanely controlling that it thinks that banning photos of disgruntled fans will suddenly make people not realize that fans are disgruntled?

But, more importantly, what a shame that the Washington Post would simply fold like that. Yes, the Redskins control access to the facilities, but the Washington Post is effectively providing free advertising for the Redskins pretty much every day, by writing articles about them. The Redskins don't want to lose coverage from the Post. If the Washington Post had any journalistic integrity, why wouldn't it stand up to the Redskins and say "hey, disgruntled fans are news, and we're here to report the news." And people wonder why folks don't trust the coverage in their local newspapers any more. Apparently, those newspapers -- even the big "respected" names -- have no problem caving in to ridiculous requests from those they cover.

Meanwhile, The Big Lead (which gets a few of the details of the story mixed up) wonders what would happen if other people took such photos and sent them to the Washington Post to put on its blog, since the Redskins' main complaint is that Steinberg violated his credentials by taking the photos. If others took the photos though...

Filed Under: journalism, photos, sports
Companies: washington redskins