Welcome back to Legal Geek. This week, we put our sports nerd hat on, in the spirit of the NFL playoffs that start this week. The Washington Redskins won what might be the biggest victory for that organization in years. Ironically, it was a lawsuit the football organization was not even a party to!
https://archive.org/details/LegalGeekEp59
The Washington Redskins made headlines earlier in 2014 and 2015 when the U.S. Trademark Trial and Appeal Board revoked their federal trademark registrations on the basis of Section 2(a) of the Lanham Act. That statute prohibits several types of marks from registration, including those comprising immoral, deceptive, or scandalous material, as well as those that disparage or bring into contempt persons, institutions, beliefs, or national symbols. The TTAB specifically applied the disparaging part of this statute to take away the benefits of having a federal trademark from the Redskins football organization, because the team name and trademark is allegedly disparaging of Native Americans.
The Redskins and owner Daniel Snyder remained defiant, refusing to change the team name even though many college football teams have backed off on similar nicknames or mascots. Even in DC, the professional basketball team changed names from the Bullets to the Wizards because of negative connotations with bullets and assassinations. The Redskins decided to forge on even without the federal trademark rights behind them, but the winds of change blew in their favor right before Christmas.
The Federal Circuit Court of Appeals decided with a full panel of its judges in the case In re Tam that the federal government's ban on disparaging trademark registrations under Section 2(a) of the Lanham Act is unconstitutional because it violates the First Amendment freedom of speech. A band called The Slants challenged a refusal of a federal trademark registration based on this same disparaging rule, in this case applied as offensive to Asian-Americans.
But the Federal Circuit decided that even though rejected marks like The Slants convey hurtful speech, the First Amendment protects even hurtful speech. This changes long-standing precedent at the court that banning disparaging marks was fine for the federal government because denying federal registration does not stop trademark owners from actually using the mark, it just makes the marks harder to enforce and defend. The new opinion argues that the First Amendment has never been limited to situations where the government just outright bars speech. This is admittedly a gray area in Freedom of Speech law.
The Redskins are presenting similar arguments in appeals of the revocation of their own trademarks in the Fourth Circuit, a different federal court of appeals. It will be interesting to see if this different court follows this new decision of the Federal Circuit to force the U.S. Patent and Trademark Office to reinstate the federal registrations of Redskins.
Regardless of the outcome, the inconsistent application of the First Amendment to this portion of the Lanham Act in different circuit court jurisdictions and the recent switch in the application of the First Amendment may strongly encourage the Supreme Court to take this appeal to decide this issue uniformly for the country. That would potentially be a bigger deal for the Redskins organization than even reaching another Super Bowl.
The Bottom Line is, the Redskins might be fighting on the field against the Packers and other teams for playoff glory, but the real fight is in the legal arena where the Redskins have a chance to prevail once again thanks to The Slants.
Until next time, enjoy the playoffs and let's hope the Supreme Court takes on this fun First Amendment case highly relevant in the sports world.
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