Washington Redskins Also Petition Supreme Court To Hear Trademark Appeal

Last week, the U.S. Patent & Trademark Office petitioned the Supreme Court to chime in on a case involving the trademark application for a rock band with a racially charged name. Any SCOTUS ruling in that case would have an impact on the similar ongoing dispute over the trademark for the NFL’s Washington Redskins, but rather than hope for a favorable result with that petition, the football team has filed one of its own.

Yesterday, the team — whose trademark was canceled in 2014 after a USPTO board review determined it violated the Lanham Act’s prohibition against registering scandalous and disparaging marks — filed its own petition [PDF], arguing that the anti-disparagement clause of the law is unconstitutional and that the team’s right to due process was violated.

In July 2015, a U.S. District Court sided with the government and upheld the trademark’s cancelation, noting that removing trademark protection “does not restrict the public debate on public issues as the mark owner is still able to use the mark in commerce.”

Canceling a trademark does not prevent the team from using the Redskins name. It just means that the team no longer has control over how the name is used by others.

However, shortly before Christmas 2015, a federal appeals court ruled against the USPTO in a case involving the trademark application for Oregon-based rock band The Slants.

The group — which currently consists of an all Asian-American lineup — came up with the name knowing full well that it is sometimes used as a racial epithet. The Trademark office has said that the Lanham Act prevents the agency from registering the mark.

The D.C. Circuit Court of Appeals ruled in favor of the band, deeming the law’s prohibition against disparaging remarks as overly restrictive of free expression. That is the decision being appealed to SCOTUS by the Trademark Office.

The Redskins — whose appeal of the District Court ruling has yet to be heard by the Fourth Circuit — argue in the petition that the ruling in the Slants case was the correct reading of the law, and that the nation’s highest court “should grant this petition to consider this case as an essential and invaluable complement to” the Slants dispute.

The team contends that by combining the two cases into one mega-trademark dispute before the Supremes, the court would be considering a fuller picture of the issue instead of focusing solely on the questions presented in the USPTO petition.

For example, the Slants case involves a denied trademark application, as opposed to the NFL team’s trademark, which existed for decades before being canceled. The team contends that, by canceling the mark now — some 50 years after approving it — the USPTO is depriving the trademark holder of due process because of the “loss of critical evidence and the death of key witnesses.”

Just as in the USPTO petition, there is no guarantee that the Supreme Court will choose to hear this petition. It may choose to hear the Slants case, but not the team’s since that has yet to be heard by a federal appeals court, or it could decide to deny both petitions.