The Fourth Circuit hasn’t ruled yet, but the D.C. NFL team is already appealing to the Supreme Court in order to hop on a similar case. Which is fair, since they’ve been two sides of the same coin for their entire duration.
Earlier this week lawyers for the team defending the team’s slur name “Redskins” filed a petition to include their case in consideration of whether regulating disparaging trademarks qualifies as a violation of the First Amendment. The situations aren’t identical, more like two sides of the same coin: On the one side a band of people of color is trying to reclaim and trademark a slur historically used against them. On the other, a corporation holds that its use of a slur is a way to honor the people who are currently battling them in court. The question is, should there be a legal framework for reclamation?
The issue in question lies in Section 2(a) of the Lanham Act, which bans registration of marks that are disparaging. Even when the people filing the trademark are the ones who it’s disparaging towards, as is the case of Lee v. Tam.
Simon Tam, a member of an all Asian American band called The Slants, filed a trademark registration in 2013. According to the band’s website, their aim has always been to put their racial identity front and center in an industry where Asians are traditionally underrepresented. But the USPTO denied their claim on the grounds that their mark was disparaging, and the initial appeal was to no avail for the band that calls themselves “the first all-Asian American dance rock band in the world.”
But on a further appeal at the Court of Appeals for the Federal Circuit the court ruled—in a 10-2 opinion—that the band’s name was private speech. According to that court the government has no business trying to regulate it by denying the band a trademark. Now that case is on appeal to the Supreme Court and drawing a lot of attention along the way—including from the Obama Administration, who filed a request for review last week.
It’s something of a bizarre twist for the Lanham Act, which was put in place to protect those would be harmed by disparaging marks.
“[The Lanham Act became law in 1946, when it] was inconceivable that racial, ethnic and other minority groups would be in positions of power to want to reclaim a term like The Slants,” Jennifer Lee, a professor of sociology at the University of California, Irvine, told NPR last year. “Almost 70 years later, an Asian-American band wants to reclaim the name, divorce The Slants of the slur and empower themselves and Asian-Americans in the process.”
But the Federal Circuit court that ruled in favor of The Slants knows that its decision could mean registration of offensive trademarks. Scrubbing “disparaging” or “scandalous” from the law would open the door to The Slants, but it could also open the floodgates to any sort of denigrating trademark. But the court felt that was a risk worth taking.
“But much the same can be (and has been) said of many decisions upholding First Amendment protection of speech that is hurtful or worse,” the majority wrote in their opinion. “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. Even when speech ‘inflict[s] great pain,’ our Constitution protects it ‘to ensure that we do not stifle public debate.'”
Which could mean good news for the NFL, who’s been defending D.C.’s team trademark for years. Their first major loss came in 2014, when the USPTO cancelled the registration of the Washington team’s trademarks. Since then a District Court upheld the decision, and the team appealed the decision to the Fourth Circuit. But now that the USPTO has filed a writ of certiorari from the ruling in Lee v. Tam and there’s a similarly hot button case that might be heard by the Supreme Court, the NFL is no longer content to wait until the Fourth Circuit rules. And a victory for The Slants means a pretty clear victory for the Washington, D.C. team.
A Supreme Court decision may bring some well-needed clarity to the trademark approval process. This is the office where, “HAVE YOU HEARD SATAN IS A REPUBLICAN?” was deemed too offensive but two years later approved the register for “THE DEVIL IS A DEMOCRAT.” The USPTO is ok with a British sexual term being used for beer, but the same word was “too scandalous” for a clothing line. Meanwhile The Slants were rejected from the get-go, while the opposition to the NFL’s “Redskins” mark took years and a challenge to finally get it rescinded.
Of course that decision is a double-edged sword, and the years long fight against the D.C. NFL mark could be what takes the biggest hit.
“Is the Redskins name an issue we should be upset about? My opinion has always been absolutely; we have to think about who our kids emulate, and what they think about themselves,” said Lael Echo-Hawk, who edited Smoke Signals Indian Law Blog, in an interview with LXBN last summer. “If you treat someone as a caricature, a cartoon, you’re not treating them as a real human being; you’re not teaching them the value of themselves…If someone were to call me a redskin we’re going to have problems. It’s hate language. And I don’t know why Native Americans are always on the bottom of the totem pole when it comes to acknowledging the racism we struggle with.”