Advocates to Fight Washington Team's Name, Despite Court Ruling in Similar Case

Supreme Court Offensive Trademarks

When the Asian-American dance-rock band the Slants tried to trademark their name, they were denied by the U.S. Patent and Trademark Office.

The Redskins made similar arguments after the trademark office ruled in 2014 that the name offends American Indians and canceled the team's trademark.

A lower court agreed with Tam and the Supreme Court on Monday upheld that decision, saying that the "disparagement clause" of the Lanham Act unconstitutionally infringed on free speech rights. It offends a bedrock First Amendment principle: "Speech may not be banned on the ground that it expresses ideas that offend". Now it is believed the team will be able to register and protect their name. Fundamentally, the First Amendment prevents the government from punishing or suppressing speech based on disapproval of the ideas or perspectives the speech conveys.

"W$3 e're beyond humbled and thrilled to have won this case at the Supreme Court", wrote band frontman Simon Tam, who filed the original lawsuit against the Patent and Trademark Office. As the trademark office's manual puts it, an examiner determines whether or not the mark would be found disparaging by a "substantial composite, although not necessarily a majority, of the referenced group".

Said Tam, "The establishment of an Asian American band was a political act in of itself, even though we never considered ourselves as a political group". He expects the team to write a letter citing the Supreme Court decision and the 4th Circuit to overturn the district court decision that upheld cancellation of the team's federal trademark registrations.

This contradicts the inflammatory myths being circulated that the term came from the practice of paying a bounty for Indians (using a "red skin" in reference to a bloody, red scalp of a Native American).

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St. John's University intellectual property law center director Jeremy Sheff said while the Supreme Court has essentially shut the door on legal challenges to the Redskins name, "there can still be social pressure brought to bear". Issuing a license of sorts, specifically for the Redskins trademark, isn't the speech of the government.

"Now, you well know people say things that you strongly disagree with".

But Amanda Blackhorse, a Navajo woman who has been the lead plaintiff in a yearslong legal fight against the team's name, said the fight is not over, adding that years of litigation have found that "the term is offensive".

Some of this is simply too much of a mess to dissect here, such as the idea that holders of an "offensive" trademark could somehow chill protest by suing people who "criticize the use of such marks".

Blackhorse called the decision "disheartening" after 11 years of litigation.

Importantly, nothing stopped Tam from exclusively using The Slants for the name of his band and from stopping others from using The Slants, should he choose to do so, by asserting a claim for unfair competition or false designation of origin under 15 U.S.C. § 1125. They were unanimous in rejecting the argument that federal trademarks are the government's own speech and thus immune from First Amendment scrutiny of any kind.

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