The real victor in the Federal Circuit’s ruling Tuesday overturning the government’s ban on “disparaging” trademark registrations was the Washington Redskins organization, which is now in a far better position – no matter what happens next – to win back the registrations on their controversial name.
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The Portland, Oregon-based band, which plays “Chinatown dance rock”, appealed because the trademark agency had rejected its name for a trademark twice since 2010 on the grounds it disparages Asians. “It can not refuse to register marks because it concludes that such marks will be disparaging to others”.
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The Slants say their name isn’t derogatory, but a re-appropriation of a word that it uses as a positive expression of pride.
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The U.S. Department of Justice, which argued the case for the trademark office, said it was reviewing the decision.
The government must now decide whether to appeal the case to the Supreme Court.
“Our First Amendment prevents the government from giving rights and benefits only to people engaged in the ‘right kind”‘ of speech, and that principle holds just as true in the trademark system”, she said in a statement. “Strict scrutiny therefore governs its First Amendment assessment-and no argument has been made that the measure survives such scrutiny”.
The Washington football team’s appeal is proceeding in a different appeals court, so that court would not necessarily be bound by the federal circuit’s decision.
But the case surrounding the Washington NFL team’s name should be a done deal now.
“It doesn’t automatically mean that the Redskins can keep their trademark registrations”, Crittenden said.
The Slants scored a big victory in court on Tuesday. This ruling establishes precedent at the Federal Circuit level and its lower courts, but is also likely to persuade the same line of thinking in other courts (e.g. the Redskins’ case).
“Although we find the disparagement provision of [the Lanham Act] unconstitutional, nothing we say should be viewed as an endorsement of the [trademark] at issue”, Circuit Judge Kimberly A. Moore wrote in the court’s opinion.
As of Tuesday evening, The Slants’ leader, Simon Tam, was not available for comment.
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The Slants, NPR reports, know their name can be perceived as a slight against Asian-Americans and have been fighting the PTO since 2009.
