Washington’s NFL team wants the Supreme Court to hear its pleas to reinstate the federal trademark protections around its name, and to get its day in the nation’s top judicial body, the team is throwing in with another case about an organization with a name many perceive as racially disparaging.
The team’s lawyers on Monday filed a petition in support of a trademark case involving an Oregon band called The Slants, which bills itself as “the world’s first and only all-Asian American dance rock band.” Like Washington’s NFL team, the band has been fighting with the US Patent and Trademark Office over its federally registered trademarks, which the USPTO invalidated after finding its name to be disparaging toward Asian-Americans.
The band won the right to trademark its name last December when the US Court of Appeals for the Federal Circuit issued a 9-2 ruling against the USPTO, a decision that gave defenders of the Washington NFL team’s name—a dictionary-defined slur against Native Americans—reason to be hopeful.
Anthony Lupo, the head of Arendt Fox’s entertainment, fashion, and technology practice, told Washingtonian after the ruling in the band’s case that if it holds up, the case against the team’s trademarks will have to be tossed out. “This decision strikes down the PTO’s ability to reject a trademark that potentially discriminates or disparages a group,” Lupo said.
The government is appealing the Federal Circuit’s ruling in favor of the band, and in their petition, Dan Snyder’s lawyers argue the team’s case is “a necessary and ideal companion.”
The team’s petition itself is a bit of a greatest-hits compilation of all the defenses it has mounted since the USPTO invalidated six team trademarks in June 2014 after an eight-year legal fight brought by a group of Native American activists, led by Navajo nation member Amanda Blackhorse. There’s a bit of the team’s well-trodden argument that its name is actually a term connoting “honor and pride” in a passage that argues the “government’s theory…would require cancellation of a registration for a mark that once was thought disparaging but that the referenced group has since reclaimed as a source of pride.” There’s also even a rehash of the team’s hilarious dirty-word defense, filed before Fourth Circuit Court of Appeals, that argued that if the USPTO is inconsistent in to register other trademarks with potentially offensive names, the team should get a pass as well.
“For example, the PTO registered HEEB magazine but denied HEEB clothing, registered Dyke Night but denied 2 DYKE MINIMUM, registered WILD INJUN but denied URBAN INJUN, registered WANKER beer but denied WANKER clothing, registered PUSSYPOWERREVOLUTION clothing but denied PUSSY POWER entertainment services, and registered THE DEVIL IS A DEMOCRAT but denied HAVE YOU HEARD SATAN IS A REPUBLICAN? because it disparaged Republicans,” the petition reads. “We could go on.”
The Supreme Court is not likely to say whether it will take up the case involving the Slants, Lee v. Tam, or the team’s petition to be a companion case, until the summer. The particular parties aside, the government is arguing that federally protected trademarks—which allow holders to sue anyone who uses names or logos without consent—are effectively government-subsidized speech. That’s a fascinating position, and one that could have implications far beyond a rock band and an NFL franchise if the Supreme Court justices agree.
But there is a critical difference between Lee v. Tam and Pro-Football, Inc. v. Blackhorse. The band acknowledges that it’s being provocative with a name like The Slants. “We can talk about it being our ‘slant on life,’ as being people of color,” Simon Tam, the group’s lead singer (and legal namesake), told NPR when the band first started fighting the USPTO for the right to register its trademarks.
The team, though, has consistently cast “Redskins” to mean “honor,” “respect,” and “pride,” even though the term is widely avoided in it non-football contexts. A poll commissioned in August 2014 by the Oneida Indian Nation, which has been waging an extended marketing campaign against the Washington NFL team, that while 72 percent of people opposed the team changing its name, nearly 80 percent said they would be uncomfortable using the word “redskin” to describe Native Americans.