The Supreme Court of the United States will hear a case tomorrow that will take on the United States Patent and Trademark Office’s application of a section of the Lanham Act. The section deals with the registration of terms that “may disparage” people groups, and that makes this a very meaningful case for Dan Snyder’s football team.
Back in 2014, the Washington Redskins had their trademark canceled after the The Trademark Trial and Appeal Board of the U.S. Patent and Trademark Office ruled that the team’s name was derogatory and offensive. The team has since filed suit to regain their trademark.
The case being heard tomorrow not a case brought by the Washington Redskins, but instead by Simon Tam, whose Portland-based band’s application to register “The Slants” was denied in 2010. Tam, who is Asian-American, has argued that his intent to use the band name is a form of re-appropriation.
The Supreme Court declined to hear a case specifically regarding the Redskins, as the Tam case (Lee v. Tam) basically addresses the same legal issue. Of course, these two cases are in stark opposition—Tam wants to reclaim a slur used against a group in which he is a member, while white man Dan Snyder wants to continue to pretend “Redskins” isn’t a slur against Native Americans.
What’s at stake here will likely be boiled down by Washington football fans as a matter of free speech. That’s not the case. The Patent and Trademark Office’s restriction on disparaging terms falls under the guise of “government speech,” which is held to a different standard than regular free speech allowances.
The Redskins’ right to federal trademark registration was revoked by the Trademark Trial and Appeal Board in 2014, though they have retained the right to their trademark registration while the case plays out in appeal. Losing that registration would open up non-licensed parties to use the Redskins logo and whatnot, though the team would still retain non-registered trademark rights and could theoretically pursue litigation against each case.
In that regard, revoking the federal registration could lead to financial chaos for the team. Honestly, who would continue to pay out the ass for licensed apparel when that guy down the street is selling bootleg apparel that finally looks authentic. Watering down jersey sales won’t bankrupt the team, but it would certainly piss off Dan Snyder. If it gets to this point, though, I think it would be pretty weird for the NFL not to (privately) step in.
Sarah Jeong explained the implications of Lee v. Tam for The New York Times, and this paragraph nicely sums up what SCOTUS’s decisions could mean for Tam and the Redskins:
The problem, from this point of view, is that the Federal Circuit decision that handed the Slants its first victory completely threw out the “disparaging” prohibition of Section 2(a). If the Supreme Court ends up affirming that decision, the Redskins will presumably get their trademark registration back. There are ways to save the Slants that don’t also save the Redskins, the most obvious of which would be for the Supreme Court to redefine “disparaging” in a way that makes room for reappropriation. But whether that’s even possible to implement on a practical basis is another question.
As disgusting as I find the use of “Redskins” as an NFL team name, I am slightly horrified by any possible outcome that lets the government thread the needle on what is re-appropriation and what is not. It seems too messy, and as Jeong details throughout her article, the Patent and Trademark Office has already ignored surveys and amicus briefs in support of Tam in favor of literal screenshots of Wikipedia articles that label “slants” as a slur.
The only outcome that will cancel the Redskins’ trademark once and for all is if SCOTUS upholds the standard of “disparagement” in determining federal trademark registration.
Any layman’s opinion on this case should come down to whether or not they believe the government should continue to apply blanket restrictions on trademark registration that don’t allow for nuance or determination of intent, or if they believe the government can successfully navigate those murky waters on a case-by-case basis.