- The Washington Times - Monday, October 3, 2016

The U.S. Supreme Court has declined to hear the Washington Redskins‘ legal challenge to a lower court ruling to cancel the team’s trademarks on the grounds the name is offensive to Native Americans.

Instead, the high court will hear a different case involving an Asian-American rock band in order to issue a ruling on federally registered trademarks.

The Oregon-based band The Slants and the Redskins have argued separately that a 1946 federal law barring trademarks on “disparaging” terms, such as racial slurs, violates free speech rights under the First Amendment. The Supreme Court agreed last week to take The Slants’ case but rejected the Redskins‘ on Monday.

Both cases raise similar issues on trademark law and the First Amendment. But trademark law experts say the band’s case is likely to produce a more narrow ruling, which could provide a decisive victory for the Redskins or leave wiggle room for the team’s pending challenge based on other arguments they have raised.

The U.S. Patent and Trademark Office denied The Slants trademarks in 2011 on the grounds that the band’s name, a reference to the racial slur “slant eye,” is offensive to Asians.

The band was victorious last year when a divided federal appeals court in Washington ruled that the anti-disparagement portion of the 1946 Lanham Act was unconstitutional and the band should have been allowed to trademark its name. The Obama administration asked the Supreme Court to consider the case, arguing that the ruling would bar the office from refusing to register “even the most vile racial epithet.”

The Redskins‘ latest legal challenge began in 2014, when the U.S. Patent Office’s Trademark Trial and Appeal Board ordered a cancellation of the team’s trademarks after ruling they were “disparaging.” U.S. District Judge Gerald Bruce Lee upheld the decision in 2015, ruling that “the federal trademark program is government speech and is therefore exempt from First Amendment scrutiny.”

The Redskins are prepping for an appeal of that decision, with oral arguments scheduled in December before the U.S. Court of Appeals for the 4th Circuit in Richmond.

A spokesman for the Redskins said the team declined to comment on Monday’s decision.

In an unusual request, the NFL team had sought to have the justices weigh in before a federal appeals court had heard oral arguments, hoping its arguments could be heard alongside those made by the band.

Slants frontman Simon Tam has said his goal in choosing his band’s name was to confront Asian stereotypes and turn a derisive term about the shape of Asian eyes into a statement of ethnic and cultural pride.

The Redskins similarly have claimed its name honors American Indians, but the team has faced years of legal challenges from groups that say the name is racist and have pushed for them to change it. A poll earlier this year by The Washington Post found that 90 percent of Native Americans aren’t offended by the Redskins‘ name.

Trademark attorney Phil Hampton called Monday’s decision a blow to the Redskins, noting the different arguments that the band and the team have cited in their cases.

“Tam has championed the issue of political free speech in its First Amendment arguments, whereas the Redskins have argued other constitutional issues such as vagueness and governmental taking,” Mr. Hampton said.

Another expert who has tracked the Redskins‘ case, trademark attorney Mitchell Stabbe, notes that the Supreme Court has agreed to take up The Slants case to decide whether the 1946 ban on disparaging terms is valid, but said the justices likely will not delve into the specifics of what constitutes a “disparaging” term.

The Redskins‘ case has raised arguments about what standard must be met to prove a phrase is offensive and whether the term must have been considered offensive at the time it was trademarked.

“It could well be that the court says it is valid but they don’t address how you decide whether a mark is disparaging,” said Mr. Stabbe, noting that if the court rules in favor of The Slants, the Redskins‘ case also will end in a victory.

If the court rules against The Slants but does not address the broader issues of what makes a term disparaging, the team still would likely be able to keep its challenge alive, Mr. Stabbe said.

While the Redskins will not be able to argue before the Supreme Court on the case, they will likely submit briefs supporting The Slants — having previously submitted an amicus brief supporting The Slants’ petition to be heard by the court this summer.

The Redskins own six trademarks, with registration of the first dating back to 1967, that will not be canceled until the team has exhausted all of its options in the federal appeals process. A decision either way on the trademark registration will not force the team or the band to stop using their names. Instead, it creates hurdles for each entity to protect its brand.

One such benefit of federal registration allows a group to record its trademark with U.S. Customs and Border Protection, so that officers can be on the lookout for and crack down on imports of black market merchandise

Copyright © 2017 The Washington Times, LLC. Click here for reprint permission.

blog comments powered by Disqus

 

Click to Read More

Click to Hide