SCOTUS asked to jump into Washington Redskins trademark debate

It’s the story that never ends. When the government tries to get involved in the affairs of the NFL on any level it never seems to end well. (See Tom Brady for one example.) The argument by progressives who have been attempting to get the Washington Redskins to abandon the name of their team has dragged on for years now and there’s been a gradual realization that nobody has the power to force such a change except Daniel Snyder. (Okay… Roger Goodell could probably exert some indirect influence if he wanted to, but that seems rather unlikely.) Having failed to obtain an actual government mandate forcing the franchise to abandon “Redskins” entirely, activists moved to revoke their trademark rights to the name for all merchandise. After some initial success in a Virginia District Court, the appeals process was expected to move up the normal chain, but the Redskins have now asked the Supremes to jump in early and settle this once and for all. (NBC News)

The federal government and attorneys for the Washington Redskins have asked the Supreme Court to review separate cases that could lead to revocation of the “Redskins” trademark as a racial slur, court documents showed Monday.

The team’s parent company, Pro-Football Inc., said Monday that it has filed for a writ of certiorari asking the high court to review a U.S. District Court ruling in Alexandria, Virginia, which had ordered the U.S. Patent and Trademark Office in July 2015 to cancel the team’s trademark on the ground that it’s offensive to American Indians.

The team has appealed that ruling to the 4th U.S. Court of Appeals, but in a court document filed Monday in Richmond, Virginia, the team’s attorney, Lisa Blatt, asked the Supreme Court to step in early and hear the case before a second, similar case can upset the apple cart.

There’s no assurance that the Supreme Court will even entertain this request. There are a couple of cases related to this trademark question making their way through the courts and the Supremes frequently prefer to allow the lower courts to fight it out first and determine if there’s some sort of consensus or if they need to act as a tiebreaker. This isn’t some case which affects an upcoming election or the expiration of a nuclear arms treaty so there’s really no sense of urgency on the part of the Supreme Court. I won’t be shocked if they ignore this request and send them back to the court of appeals.

What we might learn when all this is over, however, is at least something about the limits of both trademarks and how the concept of free speech applies to them. On the first score, the entire concept of trademarks has always struck me as one of those annoying, but still necessary aspects of corporate law. The idea that you can lock down a word or phrase (or in some cases even a picture) and demand that nobody else use it just rubs me the wrong way. But by the same token, those words and phrases can and do build monetary value for the person who develops them. The NFL is actually a great example of this because it seems insulting to say that a huge fan of a particular team can’t set up a fan website and put images of the team logo on it. But the team and the NFL sell a lot of products (shirts, hats, beer mugs, etc.) with those brands and allowing someone with no stake in the team to sell the same items is clearly something of a robbery.

But what about free speech? If you’re not ripping off somebody else’s brand, how much of a limit can the courts really place on the words and images? We do allow restrictions on pornographic imagery, but beyond that it seems as if it should be pretty much open season. The linked article also checks in on the case of Simon Shao Tam who, along with his band mates, formed a musical group he named “The Slants.” The fact that Tam is Asian shouldn’t really even affect the question, though it seems to be giving him some sort of stronger standing in practice. Even if a name is offensive, we defend offensive speech in this country. And if the offensive speech itself is within the law, how can a trademark on the words be out of bounds? It simply doesn’t make any sense to me and sounds like a bit of hypocrisy to apply such a standard. The same should go for the Redskins.

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