Tuesday, December 22, 2015

A Favorable First Amendment Slant Should Save the Redskin's Trademark

For several years, there has been a politically correct effort to force the Washington Redskins to change their name.  In fact, the U.S. Patent and Trademark Office was convinced with withdraw the NFL franchise's trademark protection in 1999 and 2014, citing that "the term redskin" as derogatory and offensive even though the USPTO had approved the mark over 80 years before. Washington Redskin's owner Daniel Synder appealed claiming that case law and the weight of the evidence had been ignored.  A federal district court agreed with the Patent Office's withdrawal of the trademark in July 2015. 

However, a Federal Appeals court handed down a ruling which may well be a game changer.  The Portland Oregon dance rock band "The Slants" won a Federal Appeals Court case which began in 2011 over their provocative moniker.  The Slants are composed of Asian Pacific Island band members and pride themselves as taking on racism presumably by embracing a name which many consider to be ethnic slander. 

The Slants

In a December 22, 2015 decision, the Federal Appeals Court ruled:

“Many of the marks rejected as disparaging convey hurtful speech that harms members of oft-stigmatized communities. But the First Amendment protects even hurtful speech...
The government cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks."
That ruling ended The Slant's legal Misery, but also serves as a strong indication that the Redskin's ruling will not stand. The Redskins were stripped of trademark protection because of "hurtful speech".  In addition, the Redskin's case is even stronger as the USPTO had already approved the trademark years before and then sought to yank it away.  However, because the Redskin's appeal is in another circuit, the Slant's ruling is not automatically set a precedent.  And the US Supreme Court could also overturn the Slant's First Amendment trademark protection.

But until then..

UPDATE: 01/18/2017:  The Slants get their day at the highest court in the land as Lee v. Tam reaches the Supreme Court. The justices will decide whether the government can penalize free speech which it finds offensive or if the government granting a trademark protection allows it to disassociate from ideas which the public might find offensive 

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