Washington Redskins Appeal To SCOTUS On Trademark And Seek To Tie Their Case To That Of The Slants

We've talked quite a bit around here about the saga of the Washington Redskins trademark cancellation. The long-held mark by the football team was cancelled after a group of Native Americans petitioned against it, claiming that the team's name was disparaging of their people. After I, dare I say, flip-flopped from cheering on the cancellation to having the team itself change my mind with a delightfully vulgar ruling, which demonstrated that the USPTO grants all kinds of marks on "offensive" terms, the current status of the trademark remains cancelled. Well, the team has now appealed to the US Supreme Court, not only seeking to have its own case reviewed, but also seeking to tie their case to another that we've talked a bit about, that of the Asian music group, The Slants.

The Slants' case is different from the Redskins', with the music group never getting its trademark registration, also based on the notion that its name was disparaging of the very group of people who comprised the band. An appeals court declared the refusal of the band's trademark applications was a First Amendment violation, rightly. But the USPTO has appealed to the Supreme Court. The Redskins, meanwhile, have petitioned the Supreme Court to take the two cases in tandem, arguing that the slight differences between the two would give the court a well-rounded look at the question of whether blocking disparaging trademarks was a constitutional violation.

If this Court grants certiorari in Tam, the Court should grant certiorari before judgment here to consider this case as an ideal and essential companion to Tam. This Court repeatedly has granted certiorari before judgment on those occasions, like this one, when the consideration of complementary companion cases offers the best way to decide important questions of constitutional law. As the government acknowledges,
this case squarely presents the same First Amendment question presented in Tam, a question of undeniable, fundamental national importance.

Tam is the short-form reference to The Slants' case. It's a savvy move by the team, seeking to pair its case with that of The Slants, who by any measure ought to be seen as deserving of more sympathy generally than the football club. After all, there does seem to be a difference in texture between a group of Asian people who want to call their band The Slants and a football team owned by Dan Schneider that wants to have an admittedly racist term for Native Americans serve as its team's name. But the question of law is certainly similar enough that I would agree it would make sense to review both cases together. Under the law, either refusing marks based on disparagement is constitutional or it isn't. There's no provision for who is applying for, or holding, the trademark in question.

Another reason it's a savvy move by the Redskins is that The Slants are coming into the SCOTUS review having won its appeal. In their case, it's the USPTO doing the appealing to SCOTUS. The team likely sees the band having an easier time getting a win before the court, having won on appeal, and is arguing that if The Slants' case holds up, then the cancellation of the team's trademark would make no sense.

And the Redskins are right. The team's name may be antiquated, but under the law, the government has no business applying its schizophrenic sense of morality to speech under the First Amendment.

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