Supreme Court Takes Case That Could Affect Trademark Protection for Football Team’s Offensive Name

Friday, September 30, 2016

By Sam Hananel, Associated Press

WASHINGTON — The Supreme Court is taking up a First Amendment clash over the government’s refusal to register offensive trademarks, a case that could affect the Washington Redskins in their legal fight over the team name.

The justices agreed Thursday to hear a dispute involving an Asian-American rock band called the Slants, but they did not act on a separate request to hear the higher-profile Redskins case at the same time.

Still, a high court ruling in favor of the Slants could bolster the football team’s legal fight. Both groups argue that it is unconstitutional for the government to reject trademark rights for offensive speech.

The trademark dispute is one of eight new cases the Supreme Court added to its calendar for the term that starts Monday. The court continues to operate with only with eight justices since Antonin Scalia died in February. His successor appears unlikely to be confirmed until sometime after the election.

In the Slants case, front man Simon Tam tried to trademark the name in 2011, but the U.S. Patent and Trademark Office denied the request on the ground that it disparages people of Asian descent. He sued, and a federal appeals court ruled last year that the law barring offensive trademarks violates free speech rights.

The Redskins hoped to piggyback on the band’s case, asking the Supreme Court to consider both disputes at the same time. The trademark office canceled the team’s trademarks last year after finding they are disparaging to Native Americans.

But the team’s appeal has not even been heard yet by a federal appeals court in Richmond, Virginia. In an unusual request, the team asked the Supreme Court to intervene before the lower court acts. The high court almost never grants such requests.

Tam says his goal in choosing the name was to transform a derisive term about the shape of Asian eyes into a statement of ethnic and cultural pride. The Redskins have similarly claimed their name honors American Indians, but the team has faced years of legal challenges from Indian groups that say the name is racist.

The team has also come under intense public pressure to change the name, but owner Dan Snyder has refused.

In the band’s case, a divided federal appeals court in Washington, D.C., struck down a portion of the 70-year-old federal trademark law. The court’s majority said the First Amendment protects “even hurtful speech that harms members of oft-stigmatized communities.”

“It is a bedrock principle underlying the First Amendment that the government may not penalize private speech merely because it disapproves of the message it conveys,” Judge Kimberly Moore said for the majority.

In dissent, Judge Alan Lourie said the decision interferes with the government’s authority “to filter out certain undesirable marks from the federal trademark registration system.” He said the ruling would lead to “further the degradation of civil discourse.”

The Obama administration is urging the high court to overturn the ruling. The government says the law “simply reflects Congress’ judgment that the federal government should not affirmatively promote the use of racial slurs and other disparaging terms by granting the benefits of registration.”

The administration also argues that the law does not restrict speech because the band is still free to use the name even without trademark protection.

The American Civil Liberties Union (ACLU) and other groups have supported the Slants and the Redskins in their legal fights. The ACLU says the government can’t withhold benefits just because it disagrees with the content of someone’s speech.

The Slants and the Redskins can continue using their preferred names even without trademark protection. But a trademark confers certain legal benefits, including the power to sue competitors that infringe the trademark. For the Redskins, the team could lose millions if it can’t block the sale of counterfeit merchandise.

The Redskins say they have an even stronger case against the government than the Slants because team has already relied on financial advantages of trademark protection for many years. The team registered six trademarks including the name between 1967 and 1990.

The justices will hear arguments in Lee v. Tam, 15-1293, early next year.


To Learn More:

Federal Judge Affirms Cancellation of Washington Redskins Trademark as Offensive (by Noel Brinkerhoff and Danny Biederman, AllGov)

NFL’s Redskins Compile List of Offensive Trademarks to Justify its Offensive Trademark (by Noel Brinkerhoff, AllGov)

Nuns Sue Blue Cross over Trademark Dispute (by Steve Straehley, AllGov)


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