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Washington's Bid to Save Racist Trademark: "Take Yo Panties Off" Clothing Can Do It, Why Can't We?

Washington has a pretty stupid idea for trying to save its racist trademark.

Sean Newell

Dan Snyder is still fighting to protect the trademark for his racist team name and the legal theory he and his team have come up with can best be summed up as: "Well, look at all this other bad stuff." Months after a federal court cancelled Washington's trademark, the team has appealed the decision by providing a ledger of offensive, cruel, stupid, and, yes, racist trademarks that have not been cancelled. As a companion to this argument, Washington also claims the cancellation infringes on First Amendment free speech.

U.S. District Court judge Gerald Bruce Lee upheld the cancellation of the trademark in July, holding that denying a trademark does not violate the First Amendment because trademark protection is a type of government speech, endorsed by the federal government. Washington attacked this line of reasoning in their appeal thusly:

"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?"

Well, it is legal to sell Marijuana in several states, with more to come, so I guess the government could look into where an advertising trademark such as Marijuana for Sale was being used. And, as far as I know, there is no licensing procedure for serial killers, so I don't think that's really on point, here. And as for the Latter-Day Saints, I believe Washington is arguing that they should be denied their trademark based solely on religious grounds, which is nice.

There's more. The brief includes footnotes rattling off dozens of raunchy and or flat-out offensive trademarks.

This is great fun, and certainly a provocative argument, but that's about it. If Washington wants to change its name to the Washington Make Your Own Dildos, have at it. But this is not an argument for why a racist slur should be trademarked and federally protected. This is a professional football organization with a national (albeit dwindling due to its own incompetence) presence that has very matter-of-factly used a racist and offensive slur as its team name.

"Washington Redskins" is racist. It is a term and image that has been used by a company owned and operated by a rich and powerful white man that deeply, and profoundly, offends a group of people previous generations of rich and powerful white men exterminated and pushed into barren corners of this country. These people are fighting you in federal court about a trademark because it offends them so much. It's not some idiotic novelty toy being sold in Spencer's Gifts. That name and logo are on television every single day, and this case is specifically about "maybe we don't have to grant exclusive use to the gross and racist term."

Washington argues that the government has run afoul of the First Amendment—even though enforcing a trademark infringes much more speech than canceling it does—and that they, specifically, have had their first amendment rights trampled. No one is saying that Washington can't say, or write, or advertise the logo and mascot. A federal court has merely held that the (mostly financial) protections afforded by trademark law should not apply to an objectively racist term used by a multi-million dollar company.

Somehow, Snyder and Co. don't see the irony in fighting to protect "Redskins" by claiming that the U.S. government is fucking them over. Maybe it's because they spent too much time searching for "Hot Octopuss anti premature ejaculation cream."

[WaPo]

You can read the full brief below.

Pro-Football Opening Brief