United States: Will The Redskins Lose Their Trademarked Name?

There has been much debate and discussion over whether the Redskins—Washington D.C.'s professional football team in the National Football League—should voluntarily change their name under the view that it disparages Native Americans. In May, the Washington Post reported that a poll of Native Americans across the country found that nine in ten Native Americans are not offended by the Redskins name.

Regardless of what any poll may or may not suggest, there is also a separate debate on this issue—whether the Redskins should lose their federally-registered trademarks in the Redskins name. The basis for this debate is section 2(a) of the Lanham Act, which bars registration of disparaging words or phrases. And central to the debate is the First Amendment's guarantee of the right to free speech.

In 2015, when a federal district court affirmed the United States Patent and Trademark Office ("USPTO") cancellation of a number of the Redskins trademarks, it seemed almost certain that the Redskins would lose their trademarks. But then the Federal Circuit ruled in a separate matter—related to the rock band the Slants—that section 2(a) is itself an unconstitutional restriction on the right to free speech.

The decision related to the Slants was appealed to the United States Supreme Court, and now the question of whether section 2(a) can prohibit the Redskins trademarks may be headed to the same place. Initially, the Redskins filed an appeal of the cancellation of their trademarks to the Fourth Circuit Court of Appeals. But in April, shortly after the Slants case was appealed to the Supreme Court, the Redskins filed a petition asking the Supreme Court to hear the case before the Fourth Circuit issues a decision in light of the fact that the Supreme Court may hear the issue in the case involving the Slants. Although the Redskins team apparently believes that both cases should be decided by the same court, particularly given the sums of money it has spent building the Redskins brand, the government disagrees that the Supreme Court should hear the case. According to the New York Times, the Supreme Court only occasionally allows such a "certiorari before judgment."

The outcomes of this case and the Slants case, whether ultimately decided by the Supreme Court, may have a significant impact on the ability to register disparaging or offensive trademarks in the future. If section 2(a) is found by the Supreme Court to be unconstitutional, the USPTO would likely begin registering trademarks widely considered offensive or disparaging.

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