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Washington Redskins Appeal To SCOTUS On Trademark And Seek To Tie Their Case To That Of The Slants

from the teamwork dept

Tue, Apr 26th 2016 3:30pm — Timothy Geigner

We've talked quite a bit around here about the saga of the Washington Redskins trademark cancellation. The long-held mark by the football team was cancelled after a group of Native Americans petitioned against it, claiming that the team's name was disparaging of their people. After I, dare I say, flip-flopped from cheering on the cancellation to having the team itself change my mind with a delightfully vulgar ruling, which demonstrated that the USPTO grants all kinds of marks on "offensive" terms, the current status of the trademark remains cancelled. Well, the team has now appealed to the US Supreme Court, not only seeking to have its own case reviewed, but also seeking to tie their case to another that we've talked a bit about, that of the Asian music group, The Slants.

The Slants' case is different from the Redskins', with the music group never getting its trademark registration, also based on the notion that its name was disparaging of the very group of people who comprised the band. An appeals court declared the refusal of the band's trademark applications was a First Amendment violation, rightly. But the USPTO has appealed to the Supreme Court. The Redskins, meanwhile, have petitioned the Supreme Court to take the two cases in tandem, arguing that the slight differences between the two would give the court a well-rounded look at the question of whether blocking disparaging trademarks was a constitutional violation.

If this Court grants certiorari in Tam, the Court should grant certiorari before judgment here to consider this case as an ideal and essential companion to Tam. This Court repeatedly has granted certiorari before judgment on those occasions, like this one, when the consideration of complementary companion cases offers the best way to decide important questions of constitutional law. As the government acknowledges,
this case squarely presents the same First Amendment question presented in Tam, a question of undeniable, fundamental national importance.

Tam is the short-form reference to The Slants' case. It's a savvy move by the team, seeking to pair its case with that of The Slants, who by any measure ought to be seen as deserving of more sympathy generally than the football club. After all, there does seem to be a difference in texture between a group of Asian people who want to call their band The Slants and a football team owned by Dan Schneider that wants to have an admittedly racist term for Native Americans serve as its team's name. But the question of law is certainly similar enough that I would agree it would make sense to review both cases together. Under the law, either refusing marks based on disparagement is constitutional or it isn't. There's no provision for who is applying for, or holding, the trademark in question.

Another reason it's a savvy move by the Redskins is that The Slants are coming into the SCOTUS review having won its appeal. In their case, it's the USPTO doing the appealing to SCOTUS. The team likely sees the band having an easier time getting a win before the court, having won on appeal, and is arguing that if The Slants' case holds up, then the cancellation of the team's trademark would make no sense.

And the Redskins are right. The team's name may be antiquated, but under the law, the government has no business applying its schizophrenic sense of morality to speech under the First Amendment.

The-Slants (PDF)The-Slants (Text)

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Filed Under: first amendment, free speech, offensive, redskins, scotus, slants, supreme court, trademark
Companies: washington redskins

25 Comments

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Finnegan (profile), 26 Apr 2016 @ 3:41pm

Section 2(a)
...has always been bullshit. Can't wait until it's conclusively put down like the rabid dog of misplaced morality it is.
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Anonymous Anonymous Coward (profile), 26 Apr 2016 @ 3:56pm

Team Names
I've been thinking. What if we limited team names to verbs and adjectives, who could get upset? (I considered prepositions but there weren't enough to go around). Of course with current trends where nouns are turned into verbs it might not achieve the intended goal.
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Arthur Moore (profile), 26 Apr 2016 @ 4:06pm

Obscenity laws are a mess
Restricting obscene speech or actions is a quagmire of laws that might be on the books, but may or may not be legal. Take for example indecent exposure laws. If a woman goes topless in the NY library it's not allowed. Unless, she notifies the media that she's protesting. Then it's all legal....

You get the same things with these trademark laws. Let's say the KKK comes up with a new slogan. It's obviously protected speech, but if a sports team used it then it's no longer protected?
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Anonymous Coward, 26 Apr 2016 @ 4:27pm

Re: Team Names
bitch is noun and a verb.

The Bitches, could become a really bitching team name?

I mean who could get offended at that?

There can be no special rules for disparaging names in a trademark, all this is about is someone enforcing their moral code on someone else and nothing else.

Everyone, and I mean everyone is a bigoted, lying, hypocritical, racist! It is the very nature of humanity, and freedom of speech is important! USTPO is a Government Organization and therefore has no power to regulate anyone's name period.

All they need to do is say... someone already has this trademarked or the term is to generic or ambiguous, you cannot have it, or no one has this trademarked, you can have it.
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Anonymous Anonymous Coward (profile), 26 Apr 2016 @ 4:48pm

Re: Re: Team Names

"Everyone, and I mean everyone is a bigoted, lying, hypocritical, racist!"
Speak for yourself.

I do discriminate. I don't deny that. It is why I like blue better than red and fresh asparagus as opposed to frozen.

"dis•crim•i•nate (dĭ-skrĭmˈə-nātˌ)►
v. To make a clear distinction; distinguish: discriminate among the options available.
v. To make sensible decisions; judge wisely.
v. To make distinctions on the basis of class or category without regard to individual merit; show preference or prejudice: was accused of discriminating against women; discriminated in favor of his cronies."
I definitely make use of the first two, the third one...only until I catch myself going along with others...when I stop me and try to stop them.
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Anonymous Coward, 26 Apr 2016 @ 6:23pm

Crucify them in the court of public opinion, sure. But unless someone else holds or should hold the trademark, say a particular tribe called the Redskins, then I don't think there should be anything one could legally hold against them.
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Anonymous Coward, 26 Apr 2016 @ 6:38pm

Re: Re: Team Names
Everyone, and I mean everyone is a bigoted, lying, hypocritical, racist!

Most of us learned as children that "but everyone else is doing it!" isn't a valid excuse.
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JoeCool (profile), 26 Apr 2016 @ 6:44pm

Re: Re: Re: Team Names
Actually, most of the time it is. In fact, for most adults, the fact that everyone else is doing it is the only justification accepted. Telling kids not to do something because everyone else is is a big part of that hypocrisy he mentioned.
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Anonymous Coward, 26 Apr 2016 @ 7:22pm

Re: Team Names
no, we r left to using only pseudo-random hexadecimal numbers for team names, lest any pwecious snowflake have the vapors and swoon...
we r going to have to bring back fainting couches...
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Anonymous Coward, 26 Apr 2016 @ 9:55pm

Re: Re: Re: Re: Team Names
"Actually, most of the time it is."

Your parents were very different from mine if they accepted that excuse.
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Fin, 27 Apr 2016 @ 2:51am

Re: Re: Team Names
You sir are a baseist. Why not binary or don't computers count
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Anonymous Coward, 27 Apr 2016 @ 4:25am

Perhaps their choice of skin color needs to be changed, I do not think there are many native americans on their team.
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Anonymous Coward, 27 Apr 2016 @ 5:30am

Re:
Red, White, and BlueSkins! 'Merica!
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Anonymous Coward, 27 Apr 2016 @ 6:37am

Why waste so much money defending the name?
The Redskins team are idiots for not just caving to public pressure and changing their name on their own.

How many tens of millions of dollars have they wasted over the decades fighting lawsuits like this over, and dealing with bad press over the name as well?

Any sensible business man would have just cut their losses and caved ages ago, especially as the name is unlikely to be viewed as less offensive overtime.
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Stephan Kinsella (profile), 27 Apr 2016 @ 7:09am

Denying a Trademark doesn't violate rights
The state should never grant trademark protection in the first place, just as it should not grant patent or copyright, so the USPTO denying the Redskins' a trademark doesn't violate its rights. It doesn't prevent the Redskins from using the logo or the mark. It just means the Redskins would find it harder to sue people who also used the mark.

Ironically, denying the trademark would lead to MORE use of the "Redskins" mark--for example the Redskins would not be able to stop knock-off teeshirts, hats, and so on. So denying them a trademark would not prevent the team from using that mark, and many more third parties would also be able to use the mark.
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Anonymous Coward, 27 Apr 2016 @ 7:22am

Re: Re: Re: Team Names
Everyone discriminates, the simple truth is that YOU think you don't when you do.

This is pretty much where cognitive dissonance comes in for most people.

You cannot got to any location on earth 'anywhere' without seeing someone or something that is discriminatory. And you can fucking bet your life on it too!

Go ahead, keep thinking your shit somehow does not stink! It usually means your shit stinks more than others, when you are dumb enough to believe it!

Only people like me... whom realize that it is impossible to not discriminate in some form or another... understand these things.

Are you pro-life? Then you discriminate against pro-choice!
Are you pro-choice? Then you discriminate against pro-life!
Do you hate any cultures? No? Then you are obviously okay with all cultures including those that are okay with marrying little girls to old men!

Everyone does it, and a lot of the time they "REFUSE" I mean idiotically REFUSE to admit that they somehow have some prejudice of some kind in them!
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JoeCool (profile), 27 Apr 2016 @ 9:36am

Re: Re: Re: Re: Re: Team Names
Oh, they never did, even as they went with the herd themselves. Again, it's hypocrisy at its finest. So I should have said, "actually, most of the time it is... for them."
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Ryunosuke (profile), 27 Apr 2016 @ 9:51am

other teams up to the chopping block...
Chicago Bears (Possibly)
Green Bay Packers
Pittsburgh Steelers
SF 49'ers
Cleveland Browns
Dallas Cowboys
Kansas City Chiefs
New England Patriots
Oakland Raiders
Buffalo Bills (Possible)
Minnesota Vikings
New Orleans Saints
Cincinnati Bengals
Seattle Seahawks
Tampa Bay Buccaneers
Houston Texans

and that's JUST in the NFL, not including NHL, NBA, College sports....
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Chronno S. Trigger (profile), 27 Apr 2016 @ 10:11am

Re: Denying a Trademark doesn't violate rights
You are vary wrong about this. It's not just about rights, it's about giving preferential treatment based on arbitrary morality. Why should the Redskins have a harder time dealing with knock-offs when other, equally or more vulgar trademarks get government protection?

So the choice is remove all trademarks or quit limiting them based on arbitrary morality.
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Anonymous Coward, 27 Apr 2016 @ 6:14pm

Re: Why waste so much money defending the name?
Any sensible business man would have just cut their losses and caved ages ago...

Not very good capitalists, are they?
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Anonymous Coward, 27 Apr 2016 @ 6:18pm

Re: Denying a Trademark doesn't violate rights
The Equal Protection Clause is part of the Fourteenth Amendment to the United States Constitution.
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Anonymous Coward, 27 Apr 2016 @ 6:26pm

Re: other teams up to the chopping block...
"Chicago Bears (Possibly)
Green Bay Packers"

Heh, as I understand it, "bears" and "packers" are lingo for certain types in the "gay" community. I could totally see objection to those team names gaining traction as being anti-gay.
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Wendy Cockcroft, 29 Apr 2016 @ 5:28am

Re: Re: Re: Re: Team Names
Shame I can only give you one Insightful vote. This comment deserves First Word spot.
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Wendy Cockcroft, 29 Apr 2016 @ 5:29am

Re: Re: Re: Team Names
Well played!! :)
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Anonymous Coward, 29 Apr 2016 @ 1:26pm

Re: Why waste so much money defending the name?
Public pressure? It's a small vocal minority that cares ( and everyone in the NFC east; but that's less to do with the name so much as sticking it to a division rival) And i think it's an even smaller minority that truly is offended by the name. The rest are just using this as a tool to push a PC agenda or another point for when we all show our score in the 'I'm the least racist' game.
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