WASHINGTON, D.C.—As controversy continues to swirl about the U.S. Patent & Trademark Office's (USPTO) decision to strip the word "Redskins" (as in the Washington Redskins football team) of its long-standing trademark protection on the fact that the word "redskins" is a word used to defame Native Americans, the First Amendment Lawyers Association (FALA) has decided to take a stand on the controversy, filing an amicus ("friend of the Court") brief in favor of retaining the trademark.
The amicus brief was written by First Amendment attorney Marc J. Randazza of Las Vegas (where, we're guessing, more than one bet has been placed for or against the team's on-field play), and deals specifically with the Lanham Act, notably its Section 1052(a), which states, in pertinent part, "No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it—(a) Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute..."
"This provision of the Lanham Act violates the First Amendment of the United States Constitution in that it is a viewpoint-based restriction on protected commercial speech because it deprives citizens of a federal benefit based on both the content and the viewpoint of their speech," reads the 'Summary of Argument' portion of the brief. "No articulable government interest exists to justify this restriction. Even if such an interest did exist, Section 2(a) is not sufficiently narrowly tailored to materially advance the interest. Section 2(a) is also void for vagueness because it does not warn trademark holders of what marks will be deemed immoral, scandalous, or disparaging and it does not warn trademark holders that their trademark may be revoked if it later becomes immoral, scandalous, or disparaging."
Basically, the FALA brief argues that the mere fact that a company—in this case, a football franchise—chooses to brand itself with a word that many would find offensive is not sufficient reason for the government to step in and refuse to issue a trademark for that company, especially since the word itself is not obscene or for some other reason banned for use in public. Moreover, as adult industry attorneys are well aware, the ban on "immoral," "scandalous" or "disparag[ing]" speech has been litigated at least as far back as the Telecommunications Act of 1996, where that Act's "Communications Decency Act" section criminalized the transmission of materials that were "obscene or indecent" to persons known to be under 18.
While most free speech organizations (including Free Speech Coalition and FALA) were willing to give the government a pass on criminalizing transmission of obscene speech to minors, they had a major problem with the ban on indecent speech, arguing that the Act would prevent minors from having access to a large body of literature simply because the author may have used "indecent" words like "fuck" or "tits" or any of the other "seven dirty words" banned from broadcast radio and television.
"The general narrative put forth by the government, and fans of Section 2(a) is the somewhat flippant argument that a 2(a) denial does not restrict one's right to use the trademark in question, it merely restricts one's right to register the trademark—and all the benefits that come from registration," the FALA brief argues. "First, a rejection or cancellation under Section 2(a) actually does deprive the mark owner of significant rights—and not just a pretty piece of paper from the USPTO. It arguably deprives the owner of the right to enforce the mark and inarguably limits the owner's ability to enforce it, as well as other important statutory rights. The glib view that 'well, you can still use it' is insufficient under the First Amendment, lacks a foundation in logic, and is more 'immoral and scandalous' than any trademark."
Essentially, the FALA brief argues for a market-based method of dealing with what some consider "indecent" speech: "Trademarks convey the kind of speech the First Amendment abides being circulated into the 'marketplace of ideas;' trademark holders have financial incentives to make their name acceptable to the public, and the public has the power to reject those trademarks if it doesn’t like them." Therefore, for the government to declare some words or images unprotectable under trademark law is exactly what the FALA brief terms a "viewpoint-based restriction," since those words and images are able to be used in public with almost no legal consequences.
And make no mistake: Copyright/trademark protection is an extremely valuable commodity, even to the adult industry. It's the reason companies who sue video pirates can collect extra damages if the company registered its video product with the USPTO prior to the material being pirated.
The brief provides several examples of words that would be denied USPTO protection, while euphemisms for those words—for example, "effluvia" rather than "cum"—would be able to be registered, thus forcing the company that originally wanted to use "cum" in its title to choose a different, "less offensive" word in order to gain government protection, thereby infringing on that company's free speech rights.
The brief puts forth several other arguments, including that trademarks are not in fact "government speech" and are not a sign of government approval of the mark, not to mention that the American legal system is unable to sufficiently define terms such as "immoral," "scandalous," or "disparaging" to a sufficient degree that someone wishing to use a particular term would be able to know in advance if that term would run afoul of the Lanham Act provisions.
The full FALA amicus brief in Pro-Football, Inc. v. Blackhorse, et al. can be found here.
