Team: Redskins not only offensive name with trademark protection

The Washington NFL team notes in its appeal of a ruling that canceled its federal trademark registrations that the U.S. Patent and Trademark Office has registered hundreds of what the team believes are racist, misogynistic, vulgar or otherwise offensive marks over the years, citing "TAKE YO PANTIES OFF" clothing, "MIDGET-MAN" condoms and "SLUTSEEKER" dating services, among others.

Attorneys for the team filed a brief to the U.S. Court of Appeals for the Fourth Circuit dated Oct. 30 and USA TODAY Sports obtained a copy Tuesday. The brief lays out arguments why the team believes the Fourth Circuit should overturn a decision by U.S. District Court Judge Gerald Bruce Lee, who ruled this summer that “the evidence before the Court supports the legal conclusion that between 1967 and 1990,” when the marks were registered, they “consisted of matter that 'may disparage' a substantial composite of Native Americans.”

That’s the standard under Section 2(a) of the Lanham Act, but the brief argues this disparagement clause is unconstitutional on free speech grounds, that it is impermissibly vague in violation of the First and Fifth Amendments and that the decades-long delay between registration and cancellation violates due process.

“To our knowledge, of the over 3 million trademarks registered since 1870, no registration has ever been retroactively cancelled for being disparaging,” the brief says. “The Redskins are the first and only.”

Last year an appeals board of the patent office ruled in favor of Amanda Blackhorse and four other Native American petitioners who sought cancellation of the registrations. The team, which continues to enjoy the benefits of its registrations during appeals, sued in District Court in Alexandria, Va., to overturn that ruling. Lee, in upholding it, wrote: “The federal trademark program is government speech and is therefore exempt from First Amendment scrutiny.”

Lee’s ruling relied in large part on a Supreme Court decision this year that said Texas was within its rights not to allow Confederate battle flags on state license plates because such plates are government speech and thus immune to First Amendment challenges. The brief argues there’s a key difference here: “No one associate