The Washington Redskins have filed their opening appellate brief in the case of Pro-Football Inc. v. U.S., No. 15-1874 (4th Cir.).  The case arose over the U.S. Patent and Trademark Office's ("PTO") refusal to issue trademarks based on the Redskins name, which critics assert is offensive to Native Americans.  The Plaintiff-Appellant argues, inter alia, that this refusal constitutes both a violation of the team's First Amendment rights to bear an offensive name, as well as an arbitrary enforcement of the PTO's policy against "offensive" trademarks.

In support of the latter argument, the team provides extensive lists of wildly offensive trademarks that the PTO has issued.  Certainly many of the issued trademarks mentioned in the brief are so salacious, crass, sexist and/or racist that we hesitate, on this family-friendly blog, to list them here.  Indeed, this opening brief is notable in being one of the most [not inappropriately] profanity-laden court filings we have ever seen, and is worth a look for that reason alone. 

Yet as the TechDirt blog notes, the brief raises serious issues about free speech generally, and specifically the apparently capricious criteria by which the PTO determines what rises to the level of so offensive that it is un-issuable:

Regardless, what's made clear in this filing is that the government's unwillingness to grant a trademark on vulgar or disparaging terms is wildly inconsistent. The term Redskins, after all, can't be said to be any more offensive than "Dago." What appeared to be a stance by the PTO on grounds of value instead now looks to be wind-socking for the outrage gale. And for the Redskins organization, that sucks and has to be massively frustrating.

And for the argument I had previously made -- that government ought not endorse the term "Redskins" through granting it a trademark -- to work, the government would need to be consistent on the matter. Otherwise, it is picking and choosing speech as a matter of government acknowledgement. It appears the PTO has proven itself incapable of this consistency, again, per the filing.