This past July, a Federal District Court affirmed the Trademark Trial and Appeal Board’s cancellation of the Washington Redskins’s trademark for being disparaging toward Native Americans. The NFL team filed its appeal this month in a bid to get back its registration. Under federal law, no mark that may “disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute” can be registered. In the brief, which contains references to registered marks the team deems far more offensive than its name, like Take Yo Panties Off clothing, Dumb Blonde Beer, and a few other blush-inducing ones, the Redskins argue that the disparagement clause violates the First Amendment. When the PTO denies or cancels a trademark, it doesn’t prevent the applicant from using it anyway, but the argument goes that the government is discriminating against speech it doesn’t like, while giving benefits to those it does.
This battle has been gaining a lot of attention, but there’s another trademark fight with the same issue that’s currently flying under the radar. And it will most likely affect the Redskins case because it’s already at the Court of Appeals for the Federal Circuit, just one step below the Supreme Court when it comes to trademarks. For six years now, an Asian-American rock band that calls itself The Slants has been trying to register the name with the Patent and Trademark Office. As reported by NPR, which has been tracking the situation, the PTO has twice denied the group’s trademark applications. In 2009, it deemed the term “slants” disparaging to Asians, even though The Slants said that they were reclaiming it. The PTO curiously cited definitions from Urban Dictionary as part of its reasoning for finding disparagement. In 2011, the group reapplied and said that their name was about musical chords. The PTO still wasn’t moved.
In 2013, Slants founder Simon Tam was taken back by the PTO’s response, telling NPR, “They said because of our ethnicity, people automatically think of the racial slur as opposed to any other definition of the term. In other words, if I was white, this wouldn’t be an issue at all.” He added that The Slants were ready to go to court, and they were going to argue that the PTO violated their First Amendment rights by denying the trademark.
Well, then things got twistier.
On April 20th this year, a Federal Circuit panel affirmed the denial of the trademark registration. In the opinion, Judge Kimberly Moore concluded that the name would indeed be disparaging to Asians, relying on Federal Circuit precedent. But Moore also wrote a separate opinion in favor of overturning the precedent, and suggested that the Federal Circuit take on the case en banc, meaning all the judges would be present. She thought it was time to overrule the precedent and that the First Amendment issues were worth taking a look at. And a week later, that’s exactly what happened; the Federal Circuit agreed to hear the case. So that’s where we are right now.
Where creative minds come together
It will be interesting to see how the First Amendment issues play out, especially since the ruling in the recent Supreme Court case Walker v. Sons of Confederate Veterans was that the government could select what it places on specialty license places because, in essence, the license plate program was government speech. It’s highly probable that the same ruling – that trademark registration is government speech – could happen with The Slants and, as a result, the Redskins.
Considering the ramifications this case is likely to have, stay tuned to The Fried Firm’s blog for more updates.
