However, it’s likely that In re Tam will have direct implications on the Blackhorse case. Federal law prohibits the US Patent and Trademark Office from registering disparaging terms and in this case, “slants” have been ruled offensive to Asians. The Federal Circuit certainly thinks so, as does the ACLU: Its attorneys have defended the Slants in court and criticized the USPTO’s cancellation of the Redskins trademark as a threat to free speech.
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In its challenge to that decision, the Justice Department noted that the rock band can use the name in its songs and advertising without a registered trademark. The trademark office canceled the team’s trademarks past year after finding they are disparaging to Native Americans.
There’s plenty of background to be read here, here and here, but let’s move to the present.
The Supreme Court justices met behind closed doors this week to sift through pending appeals and announced they would hear eight new cases, including the trademark dispute in Lee vs. Tam.
The team, one of the National Football League’s marquee franchises worth an estimated $2.4 billion, adopted the name Redskins in 1933 when it played in Boston before moving to Washington in 1937, and first trademarked the name in 1967.
The U.S. Supreme Court on Thursday agreed to hear the case of OR band “The Slants”, which is fighting to trademark its “offensive” name. It is possible the court could later take up the football team’s case, depending on the outcome of this one. In July 2015, a US District court affirmed the PTO’s decision. Merchants have argued that the laws violated retailers’ rights to free speech and due process under the U.S. Constitution.
The U.S. Court of Appeals for the Federal Circuit, an appeals court which hears patent and trademark cases, found in Tam’s favor previous year.
Despite the district’s arguments, the Supreme Court on September 29 granted review, one of eight cases the justices added to their docket just before the formal start of their new term on October 3.
The law “simply reflects Congress’s judgment that the federal government should not affirmatively promote the use of racial slurs and other disparaging terms by granting them the benefits of registration”, the government said in its appeal.
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This is an unconvincing attempt to suggest that because the federal government records the names of trademarks, it is somehow “speaking” those names. “This court should use this case-which cleanly presents the legal issue on a well-developed set of facts-to resolve the conflict over this important question”. Although the loss of a registration wouldn’t strip the team from being able to use the name, it would bar them from federal benefit protections including the right to exclusive nationwide use of the mark. The appeals court’s decision, the administration’s petition added, “will disrupt the enforcement of immigration laws against criminal aliens in the nation’s busiest judicial circuit for immigration enforcement”.
