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Washington Redskins Holding Breath This Supreme Court Season

By George Khoury, Esq. on September 30, 2016 11:56 AM

The Washington Redskins have faced criticism for decades about their team name and logo being offensive to Native Americans, as the term "Redskins" carries a pejorative meaning and tone. The US Patent and Trademark Office allowed the trademark to be registered half a dozen times in the past. However, in 2014, the USPTO cancelled the prior trademarks and refused to register it again, citing that the name is disparaging to Native Americans.

While the Washington Redskins case is still being appealed in the Fourth Circuit Court of Appeals, and thus is not ripe for the Supreme Court to decide, a similar case will be decided this term (assuming there isn't a 4-4 split).

Washington Football Will Be Watching an Asian American Band's SCOTUS Case

The SCOTUS case Lee v. Tam centers around an Asian American music group that has decided to "reclaim" a pejorative term for Asians as their group's name: The Slants. The problem with doing so is a Federal law, 15 U.S.C. sec. 1502(a), which prevents disparaging words from being trademarked.

However, after the USPTO denied the trademark to the band, the Federal Appeals Court in Washington, D.C. reversed the decision by finding sec. 1502(a) to be unconstitutional due to First Amendment protections. The government is appealing the Appeals Court's decision to the Supreme Court, which has actually decided to hear the matter. The Supreme Court only agrees to hear and decide approximately 1% of the cases that petition for a hearing each term.

Will Lee Set Precedent for the Redskins Case?

While the Lee case and the Washington case do not have the exact same facts, the issue of whether section 1502(a) is unconstitutional is a precedent-setting issue. If the Supreme Court decides the case in favor of the band, agreeing with the Appeals Court, then the Appeals Court hearing the Washington case will be bound by the precedent set by the Supreme Court.

If an adverse ruling to the football team and band is reached, both could still use their current names, but they would not enjoy trademark protection.

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