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Hastings Constitutional Law Quarterly

Abstract

There is a contentious debate about whether it is the government's place to determine whether offensive trademarks should receive legal protection. The Washington Redskins have been embroiled in a legal battle to protect the trademark for their team name. Currently, the cancellation of the Washington Redskins' trademark will not go into effect until the appeals process has been exhausted. The United States Supreme Court's decision on this issue will determine whether trademark owners will have the freedom to choose names without fear of losing legal protections. This Note will argue that though the Washington Redskins' may be considered an offensive team name, Section 2(a) of the Lanham Act, which rejects the registration of disparaging marks, is unconstitutional because it restricts the expressive nature inherent in a team name, even if it is intertwined with aspects of commercial speech. This Note will also examine the history of offensive marks in American sports and analyze precedential cases, including In re Tam, and discuss how they may affect the Washington Redskins' ongoing appeal.

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