Supreme Court to consider disparaging trademarks
WASHINGTON — The Supreme Court agreed Thursday to decide whether a federal trademark law used against the Washington Redskins is unconstitutional because it limits free speech.
But rather than hear the Redskins' appeal of the Patent and Trademark Office's decision in 2014 cancelling its trademark registrations, the court will consider another case -- one involving a Portland, Ore., rock band called The Slants.
The justices will decide if an appeals court was correct in declaring the federal law unconstitutional under the First Amendment because it allows trademarks considered disparaging to be rejected.
In The Slants' case, the band's effort to register its trademark was rejected because the name disparages Asian Americans. In the Redskins' case, six trademark registrations previously granted were stripped away because they disparage Native Americans. That case is now pending before a federal appeals court in Richmond.
Lawyers for the Redskins had asked the Supreme Court to hear their case instead, leapfrogging over the appeals court, or at least incorporate the two together. The court could announce as early as Monday how it will handle the Redskins case -- most likely by denying a hearing or delaying any action until the other case is decided.
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The law in question allows the trademark office to deny trademarks that "disparage ... persons, living or dead, institutions, beliefs, or national symbols." After The Slants' request was denied, a federal appeals court ruled the provision violated the First Amendment.
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. As for the federal imprimatur, it said, "the government has a substantial interest ... in declining to use its resources to encourage use of offensive or disparaging terms."
If the 10th Circuit ruling is allowed to stand, former Solicitor General Donald Verrilli wrote, the law "cannot be used in any circumstances, even to prohibit registration of the most vile racial epithets."
Lawyers for bandleader Simon Tam argued that in choosing the name The Slants in 2006, he "was following in the long tradition of 'reappropriation,' in which members of minority groups have reclaimed terms that were once directed at them as insults and turned them outward as badges of pride."
Similarly, lawyers for the Redskins have contended that their name is merely a form of entertainment. Both trademarks, they say, "stand on equal footing with those of The Lion King, Comedy Central, The Beatles, New York Times, New York City Ballet and Metropolitan Museum of Art."
The Redskins' complaint also urges the court to declare the law unconstitutionally vague because its standards are unclear. It notes the trademark office has registered trademarks for Yellowman and Red Man as well as Black Tail, Jap and Moonies.
"The countless offensive marks that the PTO has already registered — many within the last twelve months — suggests that the government’s interest is, at best, vastly overstated," the team says.