Shook, Hardy & Bacon Seattle Managing Partner Bart Eppenauer spoke about how the recently upheld U.S. Patent and Trademark Office decision to cancel the Washington Redskins trademark registrations relates to a U.S. Supreme Court opinion about license plates in a July 17 Law360 article. The article, which asked participants to discuss whether trademarks and license plates should be treated the same, was part of Law360’s Voices of the Bar series.
In early July, Eastern District of Virginia Judge Gerald Bruce Lee upheld the USPTO’s decision to cancel the NFL team’s trademark registration. Judge Lee cited a recent U.S. Supreme Court opinion — Walker v. Texas Division, Sons of Confederate Veterans Inc. — that license plates are protected government speech.
Discussing how both the NFL team and supporters of the Confederate flag can continue using their respective symbols without trademark protection, Eppenauer says, “Anyone can make a bumper sticker or other decoration with the Confederate flag on it and place it on their vehicle. Likewise, the NFL franchise can continue to use and enforce the Redskins mark without a federal trademark registration.”
Eppenauer also describes how the delicate nature of the cases affect the outcome of the court’s decision, saying, “Both of these situations involve highly sensitive and emotional issues that are viewed by many as racist. Governments rightly have a high interest in distancing themselves from these actions, let alone approving them outright.”