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Supreme Court’s Ruling in Trademark Case Is Sure to Help the Redskins

"I am THRILLED," Dan Snyder says.

The Supreme Court’s ruling Monday that an Oregon rock band can trademark its name despite being considered a derogatory term is sure to be good news for lawyers working for Washington’s NFL team. The court ruled unanimously that the Slants, a synth-pop outfit whose lineup consists of Asian-American musicians, have the right to register their name with the US Patent and Trademark Office, even though the band’s name refers to an insult directed at people of Asian descent.

The ruling will almost certainly be used to settle the Washington NFL team’s own ongoing dispute with the USPTO, which is currently trying to overturn the USPTO’s 2014 decision to invalidate six of the franchise’s trademarks on the ground that its nickname is a slur against Native Americans. A federal judge upheld the patent office in 2015. And while the team‘s petition to join the Slants’ case was denied last year, the ruling today sets a precedent for the team to get its trademarks back.

The Slants’ frontman, Simon Tam, sued the government after the USPTO refused to register the band’s trademark, citing a “disparagement clause” in federal trademark law that blocks terms or images that “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” The patent office argued that because federal trademarks can be enforced by government, they are effectively government-backed speech.

But the court saw differently, ruling 8-0—Associate Justice Neil Gorsuch, who was not on the court during arguments, abstained—that the disparagement clause is unconstitutional. “Contrary to the Government’s contention, trademarks are private, not government speech,” Justice Samuel Alito writes in the opinion.

“The clause reaches any trademark that disparages any person, group, or institution,” Alito writes. “It applies to trademarks like the following: ‘Down with racists,’ ‘Down with sexists,’ ‘Down with homophobes.’ It is not an anti-discrimination clause; it is a happy-talk clause. In this way, it goes much further than is necessary to serve the interest asserted.”

Even if names like “Slants” and “Redskins” are offensive, they are “private speech,” Alito writes, and that their protection under federal trademark law does not lessen the force of the First Amendment. He goes on to write that there is no reason to believe that government registration of a trademark is tantamount to the government’s endorsement.

“For example, if trademarks represent government speech, what does the Government have in mind when it advises Americans to ‘make.believe’ (Sony), ‘Think different’ (Apple), ‘Just do it’ (Nike), or ‘Have it your way’ (Burger King)? Was the Government warning about a coming disaster when it registered the mark ‘EndTime Ministries’?” Attorneys for Washington’s NFL team argued just as much in their appeal of the USPTO’s voiding of the club’s trademarks, filing a brief that included dozens of unmentionable names that enjoy federal protection.

But it’s fair to say the Slants and the team are coming at the trademark issue from different approaches. In the band’s case, Tam argued from the outset that its name was an attempt to “re-appropriate” a slur that demeans people of southeast Asian descent. The football team has long argued that its name is meant to “honor” Native Americans, even though the word “redskin” is rarely used in non-football contexts, and that polls have shown that most people—even if they oppose the team changing its name—would be uncomfortable addressing a Native American as such.

Still, the implications of today’s ruling are clear for the team, which put its appeal of a federal judge’s upholding the USPTO’s decision on hold pending the Supreme Court’s decision in the Slants case.

“The team is thrilled with today’s unanimous decision as it resolves the Redskins’ long-standing dispute with the government,” the franchise’s attorney, Lisa Blatt, says in an emailed statement. “The Supreme Court vindicated the team’s position that the First Amendment blocks the government from denying or canceling a trademark registration based on the government’s opinion.”

Team owner Dan Snyder‘s statement is even giddier. “I am THRILLED! Hail to the Redskins.”

Lawyers for the team did not say when they plan to resume their appeal.

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Staff Writer

Benjamin Freed joined Washingtonian in August 2013 and covers politics, business, and media. He was previously the editor of DCist and has also written for Washington City Paper, the New York Times, the New Republic, Slate, and BuzzFeed. He lives in Adams Morgan.