The Washington Redskins logo and nickname have become a hot-button issue in sports and in the general public today. Much of it coming from a decision by the United States Patent and Trademark Office to deny the trademark using an alleged “ban” on offensive terms being trademarked federally.
A federal court ruled against the USTPO a few months ago, and the agency had until Wednesday to ask the Supreme Court to take on the case. The organization did just that, and that means the Redskins and plenty of other “offensive” trademarks will get a final ruling.
Ironically, it won’t be Daniel Snyder’s case, which is also currently in the federal court system, going up before the SCOTUS. Rather, it will be a case by the band “The Slants,” whose application for a federal trademark was denied thanks to the same rule that affected the Redskins.
It all deals with Section 2a of The Lanahm Act, which bans registration of marks that disparage others.
The lower court actually sided with the U.S. Trademark and Patent Office in its original ruling, but also realized the constitutional issues needed to be dealt with. That was the matter the Federal Circuit Court took up.
At odds is the claim of free speech under the First Amendment vs. the protections a federal trademark allows for.
The Trademark and Patent Office believes their trademark doesn’t affect a team like the Redskins from still having common-law trademark practices or protections of its mark. It just simply doesn’t have the rights of federal protection.
In essence, the Redskins can go after trademark infringers in a civil way, just not get the protection of the federal trademark laws.
However, in ruling in the case of the band “The Slants” the First Amendment argument won out, with the majority opinion making its thoughts very clear on the matter.
“We recognize that invalidating this provision may lead to the wider registration of marks that offend vulnerable communities,” Circuit Judge Kimberly Moore said in the majority opinion. Twelve judges took part in hearing the case.
“Whatever our personal feelings about the mark at issue here, or other disparaging marks, the First Amendment forbids government regulators to deny registration because they find the speech likely to offend others,” she wrote.
So, while the Redskins wait out their own Federal legal case it appears their nickname’s fate will be in the hands of the eight members of the Supreme Court in a completely different case.