As I said this morning, the Patent Office’s decision to invalidate the Redskins trademarks is an unconstitutional violation of free speech. Here’s more about that.
First, let’s hear from First Amendment expert Eugene Volokh from this morning, quoting an earlier post of his from May of this year, regarding the idea of “disparagement” as a justification for revoking a trademark:
My tentative view is that the general exclusion of marks that disparage persons, institutions, beliefs, or national symbols should be seen as unconstitutional. Trademark registration, I think, is a government benefit program open to a wide array of speakers with little quality judgment. Like other such programs (such as broadly available funding programs, tax exemptions, or access to government property), it should be seen as a form of “limited public forum,” in which the government may impose content-based limits but not viewpoint-based ones. An exclusion of marks that disparage groups while allowing marks that praise those groups strikes me as viewpoint discrimination. But I’m not sure that courts will ultimately see this my way; so far they haven’t been inclined to do so, precisely because the exclusion of a mark from federal registration leaves people entirely free to use the mark.
Volokh links to today’s decision itself, which has absolutely no analysis of the First Amendment issues involved, but simply sets out to determine whether the trademark disparaged native Americans when the registrations issued. The majority says yay, the dissent says nay. But none of this is the real issue. The real issue is whether the Patent Office has the authority to invalidate a registration based upon a viewpoint restriction such as one against “disparagement” of a group.
The previous case that spurred Eugene’s initial opinion on the issue was a Federal Circuit case in which the court found that the “Stop the Islamization of America” trademark was disparaging to Muslims. That case, like today’s Patent Office decision, did not consider the First Amendment at all. It would seem that, if trademarks are being issued that praise Islam — and I’m sure such registrations exist, just like pro-native American registrations certainly exist — then it is a First Amendment violation to deny trademark protection to marks because they disparage those groups.
The only actual case on this issue cited by Eugene is Ritchie v. O.J. the Double Murderer (I have taken liberties with the caption), which offers up dicta (for non-lawyers: irrelevant comments regarding issues not litigated by the parties) to the effect that there is no First Amendment issue presented because the mark can still be used. As the dissent notes, though, unequal treatment regarding the issuance of government privileges, based on viewpoint discrimination, can violate the First Amendment. For example, a tax exemption may be a privilege granted by government — which government is not required to give out generally — but government cannot require you to sign a loyalty oath to claim the exemption.
I’m surprised at the apparent dearth of First Amendment challenges in this area — but then, invalidating trademarks because they are disparaging appears to happen rarely. I’m not surprised to hear that the Redskins are appealing the ruling — and I hope they win . . . and squash this precedent hard.