On Tuesday April 25th, a federal appeals court ruled that a federal law barring the registration of “offensive” trademarks is an unconstitutional limitation on free speech. This may have a significant impact on whether the Washington Redskins are allowed to keep their trademark.
In 2014, the U.S. Patent and Trademark Office held that the team could not trademark its name because anything that is “scandalous, immoral, or disparaging” is prohibited from trademark registration. This was further reinforced in 2015 when the District Court for the Eastern District of Virginia discussed the relationship between Section 2(a) of the Lanham Act and the First Amendment. The Lanham Act provides: “No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it— (a) Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute….” Lanham Act, Section 2(a), 15 U.S.C. §1052.
In December, the Federal Appeals Court, in Lee vs. Tam, ruled in favor of the Oregon-based Asian-American rock group, “The Slants,” who were attempting to trademark their band name. The Court held that the failure to register The Slants trademark amounted to a violation of the First Amendment. The Obama administration and the USPTO requested that the Supreme Court review the federal circuit’s decision.
It would seem that the outcome of Lee v. Tam would have a significant impact on the Redskins’ trademark question. While the Redskins case is currently pending in the Fourth Circuit, the team has petitioned the U.S. Supreme Court to consider their case, alongside Lee v. Tam, due to its similarity.
While this issue is politically charged, it seems that the Supreme Court may have the final say and determine once and for all whether the U.S. Government has the right to refuse registration of “offensive” trademarks.
