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Washington Post - ‘Take Yo Panties Off’ defense: Redskins cite other protected products in trademark appeal:

By Ian Shapira November 3 at 9:36 AM

Nearly four months after a federal judge ordered the cancellation of the Washington Redskins’ federal trademark registrations for disparaging Native Americans, the National Football League team is appealing with a provocative tactic: listing the names of porn, clothing and beer companies that use offensive language, but nonetheless have the support of the U.S. Patent and Trademark Office.

“By way of example only, the following marks are registered today: Take Yo Panties Off clothing; Dangerous Negro shirts . . . Midget-Man condoms and inflatable sex dolls,” the Redskins lawyers wrote in their opening brief filed Friday with the U.S. Court of Appeals for the 4th Circuit, based in Richmond. The lawyers later added a footnote with 31 more trademark registrations, many of them unprintable in The Washington Post. On the list: “Party With Sluts . . . Redneck Army apparel . . . Booty Call sex aids . . . Dumb Blonde hair products.”

In their bid to preserve the Redskins’ trademark registrations, the team’s attorneys are making a two-pronged argument: How can the government allow federal trademark registrations for those inflammatory entities, but strip the Redskins of their protections? And, regardless of how offensive a trademark’s name might be, how can the government reject a registration without infringing on First Amendment rights?

“A ban on registering ‘disparaging’ trademarks unconstitutionally burdens speech based on content and viewpoint, just as would a ban on registering copyrights for ‘disparaging’ books,” wrote the team’s attorneys, led by Lisa Blatt and Robert Raskopf.

Maury Lane, a spokesman for the team, said in a statement: “In fact, since 1870, over three million trademarks have been registered, and we have found none that have ever been cancelled for being disparaging. We believe that the government’s action tramples core principles of free speech and sets a dangerous precedent for other brands.”

The team is now on its third attempt in the past 18 months to save its trademark registrations.

It lost the first round in mid-2014, when the federal Trademark Trial and Appeal Board declared in a 2-1 ruling that the name offends a substantial number of Native Americans and is therefore ineligible for federal trademark registration under the Lanham Act, which doesn’t permit such protection for names that “may disparage” or bring people into disrepute.

The appeal board had been petitioned by a group of five Native American activists, led by Amanda Blackhorse, a Navajo Nation member and social worker.

The Redskins sued Blackhorse and the four other Native Americans in federal court in Alexandria to overturn the ruling. But the team lost that round in July, after U.S. District Court Judge Gerald Bruce Lee upheld the appeal board’s ruling.

Most notably, Lee said stripping the team of its federal trademark registrations doesn’t violate its First Amendment rights. He said such protections are a form of government speech carrying the government’s endorsement, and are therefore exempt from First Amendment scrutiny.

The Redskins’ attorneys, in their opening brief before the appeals court, contested Lee’s argument.

“No one today thinks registration reflects government approval,” they wrote. “But if this Court holds that it does, how will the government explain registrations like “Marijuana for Sale . . . [or] Licensed Serial Killer? Does registration of The Church of Jesus Christ of Latter-Day Saints unconstitutionally endorse religion?”

Attorneys for Blackhorse declined to comment. They are expected to file a response in court by mid-January.

Daniel Snyder, the team’s owner, says the name honors Native Americans and has vowed never to change it. He points to many Native Americans who love the mascot, citing them as proof that opponents don’t speak for everyone.

The cancellation of the team’s trademark registrations won’t go into effect until the Redskins have exhausted the appeals process in federal court. Even if the team takes the case to the Supreme Court and loses, it can still use the name “Redskins” and leverage trademark protections under state law. Still, the team has argued that losing its protections could hurt its brand and aid copycats who want to sell unlicensed merchandise.

 

[Kabuki Quantum Lover]

Keep fucking that chicken™, Snyder.

 

[Gordon Shumway]

So..they've just admitted the team's name is in fact offensive..smart move.

 

[Kinyou]

“By way of example only, the following marks are registered today: Take Yo Panties Off clothing; Dangerous Negro shirts . . . Midget-Man condoms and inflatable sex dolls,” the Redskins lawyers wrote in their opening brief filed Friday with the U.S. Court of Appeals for the 4th Circuit, based in Richmond. The lawyers later added a footnote with 31 more trademark registrations, many of them unprintable in The Washington Post. On the list: “Party With Sluts . . . Redneck Army apparel . . . Booty Call sex aids . . . Dumb Blonde hair products.”

They're really going with this? I mean the implication is obvious
"See, those guys can be assholes. That means we can be assholes too"

 

[Ninja Scooter]

Fuck this team.

 

[Gordon Shumway]

They're really going with this? I mean the implication is obvious
"See, those guys can be assholes. That means we can be assholes too"

No no no..well, yes.

 

[RomanticHeroX]

As you can see, clearly we deserve the same respect and protection as such reputable organizations like Dangerous Negro and Party With Sluts.

 

[Gordon Shumway]

As you can see, clearly we deserve the same respect and protection as such reputable organizations like Dangerous Negro and Party With Sluts.

lol..

 

[Yaphett Kotto]

What a shitty defense.

 

[Doctor West]

Fucking disgusting.

 

[Merc_]

Pretty sure your brand is already hurt guys.

 

[JABEE]

Pride, History, Tradition, and Booty Call sex aids.

 

[Yaboosh]

What a shitty defense.

It seems like a perfectly valid defense but a terrible idea to use that defense just because the obvious reaction is what is happening now.

 

[Orbis Tabula]

What a shitty defense.

Par for the course for the Redskins.

Spoiler

I know literally nothing about football, but this sounds like a joke that makes sense.

 

[Pagusas]

 

[PSqueak]

...

So are they trying to actually use this as defense, or are they just trying to take as many tasteless companies down with them? what's the end game here?

 

[CassCade]

I feel like people don't know what free speech means, freedom of speech doesn't give you the right to say what you want whenever you want it, there are limitations, just limitations.

 

[Gordon Shumway]

What a shitty defense.

Nope. It's perfect. Except they just admitted the name is offensive, which they've been claiming it wasn't. Maybe they'll double down and call themselves the Dumb Blonde Redskined Midgets! Or Cosby..

 

[SalvaPot]

 

[Count Dookkake]

It's a fair argument.

 

[BenjaminBirdie]

It's a fair argument.

It looks terrible for them but, yeah, it kind of is.

 

[Hexa]

That's a good defense. It may make them look bad, but there's little chance they'll lose the mark.

 

[G.ZZZ]

Yeah the slippery slope in effect. Not sure how the law on trademarks and names goes over there, but i don't think the point is baseless.

 

[HawksWinStanley]

What a shitty defense.

What else do they have? I think it's actually a decent strategy. They've already been deemed guilty of being dicks, might as well use it to their advantage.

 

[Merc_]

Nope. It's perfect. Except they just admitted the name is offensive, which they've been claiming it wasn't. Maybe they'll double down and call themselves the Dumb Blonde Redskined Midgets! Or Cosby..

That really is the best takeaway from this.

 

[Atomic Playboy]

If only they'd called themselves the Washington Dangerous Negroes this whole controversy could have been avoided.

 

[Gentleman Jack]

Oh my god this brief...

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?

Other startling examples that would reflect government endorsement under the decision below include: SHANK THE B!T@H board game; CRACKA AZZ SKATEBOARDS; ANAL FANTASY COLLECTION, KLITORIS, and OMAZING SEX TOYS sex toys; HOT OCTOPUSS anti-premature ejaculation creams; OL GEEZER wines; EDIBLE CROTCHLESS GUMMY PANTIES lingerie; WTF WORK? online forum; MILF WEED bags; GRINGO STYLE SALSA; MAKE YOUR OWN DILDO; GRINGO BBQ; CONTEMPORARY NEGRO, F’D UP, WHITE TRASH REBEL, I LOVE VAGINA, WHITE GIRL WITH A BOOTY, PARTY WITH SLUTS, CRIPPLED OLD BIKER BASTARDS, DICK BALLS, and REDNECK ARMY apparel; OH! MY NAPPY HAIR shampoos; REFORMED WHORES and WHORES FROM HELL musical bands; LAUGHING MY VAGINA OFF entertainment; NAPPY ROOTS records; BOOTY CALL sex aids; BOYS ARE STUPID, THROW ROCKS AT THEM wallets; and DUMB BLONDE hair products. Word limits prevent us from listing more.

 

[Forearms]

It's a fair argument.

Except one is race related... you can't choose your race, but you can certainly choose to Party With Sluts.

 

[PlayALLtheGames]

As a Washington fan, this is so god damned embarrassing. CHANGE THE FUCKING NAME.

 

[Yaphett Kotto]

It seems like a perfectly valid defense but a terrible idea to use that defense just because the obvious reaction is what is happening now.

Nope. It's perfect. Except they just admitted the name is offensive, which they've been claiming it wasn't. Maybe they'll double down and call themselves the Dumb Blonde Redskined Midgets! Or Cosby..

I mean its shitty in the way that it backfired on them.

 

[Archaix]

At least they aren't trying to argue the fact that they just want to make money off of their racist fucking name any more.

"But you let all of them be crass assholes and I wanna too!" is at least a defensible position.

 

[Stumpokapow]

“A ban on registering ‘disparaging’ trademarks unconstitutionally burdens speech based on content and viewpoint, just as would a ban on registering copyrig hts for ‘disparaging’ books,” wrote the team’s attorneys, led by Lisa Blatt and Robert Raskopf.

this is an epically bad argument; trademarks, patents, and copyrights all do different things. copyright is the most directly related to speech (insofar as you buy america's nonsense selling = speech stuff) because copyright protects creative works and expressions.

is it anti free-speech that you can't patent a perpetual motion machine? because your invention is speech? that's completely facile. likewise, trademarks are not designed to protect your creative expression--they're designed to protect your reputation from imposters. are the redskins arguing that you shouldn't cancel their trademark because it will lead to off-brand merchandise? no? then what do they need the protection of a trademark for?

“In fact, since 1870, over three million trademarks have been registered, and we have found none that have ever been cancelled for being disparaging.

misleading statistic; the denominator in this discussion would be all those trademarks that were cancelled, not all those trademarks that were registered. of course trademark cancellation is rare.

 

[……forgetit]

Oh my god this brief...

I died when I saw Nappy Roots listed, holy shit

for those who don't know

 

[CapitalismSucks DonkeyBalls]

Can a mod please change my name to CapitalismSucksDonkeyBalls, please?

 

[Gordon Shumway]

I died when I saw Nappy Roots listed, holy shit

Nooooo..for real?!

 

[neogaffer1]

most of those other trademarks are tongue in cheek or made in a way that makes it clear that they're not trying to actually offend anybody. "Take Yo Panties Off" might be offfensive but it's what's written on the shirt, and is made to be a joke. Dangerous Negro isn't trying to insult African Americans; it's actually quite the opposite. Only Redskins comes out and says "we're not insulting anybody and we're quite noble in trying to protect our heritage" when that's not true.

 

[Tobor]

It's brilliant from a legal perspective, but it's a bad look.

Snyder has now given up his main defense in the court of public opinion. The lawyers are admitting the brand is offensive.

The NFL needs to step in here and force Snyder's hand.

 

[HiredN00bs]

This is an outstanding failure.

 

[Veritigo_X]

I died when I saw Nappy Roots listed, holy shit

for those who don't know

Man, I haven't thought about Nappy Roots in years. One of my elementary school teachers actually had a nephew that was in it.

 

[Nazgul_Hunter]

It's brilliant from a legal perspective, but it's a bad look.

Yup. It might win them the battle but they'll lose the war

 

[PillarEN]

"Party With Sluts"? I'm fascinated by this trademark and will do some research.

As for Washington F.C. we get it man. You care about the bottom line first and that means that it would hit your pockets if the team name was changed. Nothing even matters in terms of discussing this. You want money which is why you won't change it until you can't hold off any longer.

 

[CorvoSol]

Goddammit of all Churches they go and throw Mormons under the bus.

 

[stump sock]

most of those other trademarks are tongue in cheek or made in a way that makes it clear that they're not trying to actually offend anybody. "Take Yo Panties Off" might be offfensive but it's what's written on the shirt, and is made to be a joke. Dangerous Negro isn't trying to insult African Americans; it's actually quite the opposite. Only Redskins comes out and says "we're not insulting anybody and we're quite noble in trying to protect our heritage" when that's not true.

Yeah it's actually a terrible defense for exactly this reason. Actual native americans have taken offense to this name. People who make their own dildos aren't offended by "Make Your Own Dildo."

"Party With Sluts"? I'm fascinated by this trademark and will do some research.

As for Washington F.C. we get it man. You care about the bottom line first and that means that it would hit your pockets if the team name was changed. Nothing even matters in terms of discussing this. You want money which is why you won't change it until you can't hold off any longer.

Here's the thing. We all hate Dan Snyder, have for years. Not a single washington fan likes the bastard. Changing the name only hurts two things: your dumb sense of "tradition" and Snyder's wallet. Ditch your pride, have some compassion, and hit Snyder where it hurts.

 

[Paskil]

This is basically the adult version of "if they get to do it, how come I can't, mom?" Or, I guess it is pretty childish.

 

[Fourth Stooge]

this is an epically bad argument; trademarks, patents, and copyrights all do different things. copyright is the most directly related to speech (insofar as you buy america's nonsense selling = speech stuff) because copyright protects creative works and expressions.

is it anti free-speech that you can't patent a perpetual motion machine? because your invention is speech? that's completely facile. likewise, trademarks are not designed to protect your creative expression--they're designed to protect your reputation from imposters. are the redskins arguing that you shouldn't cancel their trademark because it will lead to off-brand merchandise? no? then what do they need the protection of a trademark for?



misleading statistic; the denominator in this discussion would be all those trademarks that were cancelled, not all those trademarks that were registered. of course trademark cancellation is rare.

Losing the trademark will lead to off-brand merchandise. This is not in dispute by anyone. NFL teams sell a lot of merchandise and they spend a lot of money protecting their trademarks and copyrights. It's a huge business, probably much higher than ticket sales. If they lose the trademark, they have to change the name for business purposes--that's why people are trying to cancel the trademark. It's a roundabout way to force a name change.

 

[Gordon Shumway]

"Party With Sluts"? I'm fascinated by this trademark and will do some research.

LOL

 

[pompidu]

KLITORIS

 

[Sho_Nuff82]

They're really going with this? I mean the implication is obvious
"See, those guys can be assholes. That means we can be assholes too"

This made me laugh too hard.

 

[PillarEN]

Here's the thing. We all hate Dan Snyder, have for years. Not a single washington fan likes the bastard. Changing the name only hurts two things: your dumb sense of "tradition" and Snyder's wallet. Ditch your pride, have some compassion, and hit Snyder where it hurts.

I'm not sure if my post was unclear but what you wrote is the same point I was making.
Just to be clear.

 

[victreeb3l]

Oh my god this brief...

Lmao holy shit