The US Department of Justice Seeks to Intervene in the Washington Redskins' Trademark Suit to Defend the Constitutionality of the Lanham Act

The Washington Redskins professional football team will soon not only be battling Native Americans over the registrability of the REDSKINS trademark, but will also have to cross swords with the US Government. Last week, the US Department of Justice filed a Notice of Intervention in the appeal of the US Trademark Trial and Appeal Board’s decision last summer to cancel the REDSKINS trademark registrations. As we reported in our earlier post, the Washington team raised in its appeal constitutional issues that could not be decided by the TTAB. These 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.

The Notice of Intervention states that the US Government will be defending the constitutionality of Section 2(a) of the Lanham Act, and is entitled to do so as a matter of right pursuant to the Federal Rules of Civil Procedure and statute.

As of this writing, no responsive pleadings have yet been filed by either the team or the Native Americans. Stay tuned.

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