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"REDSKINS®": Who's Saying That Anyway?

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

 

Brand image Protection: Is the registration and display of the REDSKINS trademark a "message" from the team owners or from the federal government? That's a key issue at the heart of the dispute in the ongoing struggle of the team to maintain its federal registrations. The federal court in the case of Pro-Football, Inc. v. Amanda Blackhorse, (ED VA July 8, 2015) found, most significantly, that the registration and display is "government speech," not private or commercial speech of citizens, and thus there is no First Amendment right of free speech protecting the message against claims it is not eligible for registration because it "disparages" an identified segment of the population.

The 2014 decision in the Trademark Office to cancel the registrations was appealed to the federal district court in Virginia. Just before the district court was about to issue its judgment, the Supreme Court handed down its decision in the non-trademark case of Walker v. Texas Div., Sons of Confederate Veterans, Inc. 135 S. Ct. 2239 (2015). There, the Court upheld the right of the State of Texas to reject a license plate design on the grounds that it may be offensive to any member of the public. The license design, whose submission was authorized for approval and issuance under state law, featured the Confederate flag.

The Supreme Court said the state had the right to refuse the submitted design because there was no First Amendment right to the message, or "speech," in obtaining approval of the flag license-plate design, because it was government speech. The test boiled down to these questions: 1) is it a message from the government, e.g., by communicating it has been approved by the government?; 2) is it akin to issuance of a government ID, e.g., by issuing an identifying registration number?; and 3) does the government exercise control over the content of the message by, for example, withholding final approval if the message is disparaging of others?

The district court answered yes to all the questions as should be self-evident. The team had also argued that it was commercial speech, not government speech, which would require broad enough First Amendment protection to entitle the team to the registration. Notably, the district court said: "Marks approved through the federal registration program are published in  the Official Gazette of the [U.S. Patent and Trademark Office] and the Principal Register in order to inform the public of marks registered with the federal government." Under 15 U.S.C. 1057 and 1072 a registration is "constructive notice" of use of the mark by the registrant and claim of ownership. Thus, and only indirectly suggested by the district court, not only does the registered mark walk and talk like government speech, but trademark law goes further to say that, whether the public perceives it or not, the government's communication of notice to the public of federal trademark rights is presumed as a matter of law. The Texas law regulating license plates had no such ingredient of pure government speech baked into it.

The Redskins' lawyers argued it was the team's skin in the game, so to speak - or at least its message - not the government's, whenever it displays the REDSKINS trademark with the ®, and therefore it is the team's message at issue. But the ® and what it stands for are the whole purpose of trademark registration - the government's sanction and the firepower of federal rights the registration announces. The team's message is, in effect, no more than hearsay: "The U.S. Government has said we have these rights."

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