Skip to main content

Washington Redskins Challenge the Constitutionality of Section 2(a) of the Lanham Act

The Washington Redskins trademark controversy is far from over. Despite the fact that certain news and sports commentators and mainstream newspapers and organizations have announced that they will no longer use the term "Redskins" when reporting on the National League football team, and the fact that a variety of public figures, including President Obama, have expressed an opinion that the name should be changed, team owner Dan Snyder continues to steadfastly defend the name as expressing only "honor and respect" and state that he has no intention of ever changing it. In support of that promise, the team has appealed the cancellation of its US trademark registrations by the US Trademark Trial and Appeal Board which held in a split 2-1 decision that the REDSKINS trademark was disparaging to Native Americans and, therefore, no longer eligible for continued registration.

The appeal was filed in the form of a Complaint at the US District Court for the Eastern District of Virginia under a procedural option made possible by the America Invents Act. By opting for this strategy, the team can seek from the court a review of the entire record in the case de novo, without considering the Board's prior findings and conclusions. This would allow the introduction of new and different evidence and a completely new assessment of not only issues that were decided by the Board but also any new issues raised by the parties. Pro-Football, Inc., the owner of the team and the Plaintiff in the proceeding, has, in fact, raised a number of new issues including various constitutional challenges to the Lanham Act as well as the Board's Order.

In the underlying Board proceeding, the constitutional issues were not considered or decided since the Board, which is not an Article III court, had no power to do so. Thus, the issues raised by the team will be considered for the first time by the Federal District Court in Virginia, and include the following:

  • Trademarks are constitutionally protected commercial speech and Section 2(a)’s provisions prohibiting the registration of “disparaging, “”contempt[uous]”, or “disreput[able]” aspects of a mark are an unconstitutional, content-based restriction on speech that violates the First Amendment to the US Constitution.
  • Section 2(a)  is facially overbroad and unconstitutionally void for vagueness in violation of the First Amendment to the US Constitution since, inter alia,  the terms “disparage,” “may disparage,” “contempt,” “disrepute,” and “may bring…into contempt or disrepute” are not defined in the Lanham Act or its legislative history.
  • The cancellation of the REDSKINS registrations violate the team’s due process rights provided by the Fifth Amendment to the US Constitution by unreasonably depriving the team of federally granted property rights that it has relied on for almost half a century.
  • The Board’s Order canceling the REDSKINS trademark registrations is an unconstitutional taking of Pro-Football’s property without just compensation in violation of the Takings Clause of the Fifth Amendment to the US Constitution.

As of this writing, the named Defendants in the case, the five Native Americans who initiated the last cancellation proceeding against the REDSKINS trademarks, had not yet filed a response to the Complaint. However, a responsive pleading is presumably forthcoming since Defendant Amanda Blackhorse released a statement on August 14, 2014, the date the Complaint was filed, attacking the team’s continuation of the litigation and determination to keep the REDSKINS name.

With the addition of these Constitutional issues to the mix, this should be an even more interesting case to follow. We will keep you posted on all further developments.

Subscribe To Viewpoints


Susan Neuberger Weller manages the Trademark & Copyright Practice at Mintz. Susan assists clients with securing and protecting IP assets across the globe. She's worked with clients in a variety of industries, including pharmaceuticals, medical devices, software, electronics, and entertainment.