Washington Redskins offers helping trademark hand to The Slants

The Washington Redskins has thrown its weight behind The Slants ahead of the rock band’s trademark hearing at a US appeals court.

In an amicus brief filed at the US Court of Appeals for the Federal Circuit, the National Football League (NFL) team called on the court to rule that barring trademark applications because they are deemed to be disparaging violates the First Amendment.

The club’s June 18 filing relates to a case involving founder of The Slants Simon Tam, who was denied a trademark for the band’s name by the US Patent and Trademark Office (USPTO).

A ‘slant’ is a slang word for someone of Asian heritage.

Tam, who claimed he was recapturing the name, appealed against that decision to the federal circuit, which on April 17 upheld the USPTO’s decision.

But after one of its judges submitted an alternative view, despite concurring with the opinion, the court then decided to re-hear the case en banc—before all 11 of its judges—oral arguments have been scheduled for October 2.

In its brief, the NFL team, which has also had trademarks blocked for being disparaging, referenced a previous case that also centred on First Amendment rights (McGinley v US Court of Customs and Patent Appeals).

In the McGinley case the federal circuit ruled in 1981 that the banning of offensive trademarks does not violate First Amendment rights, because the individual or business is still able to use the name.

But the Washington Redskins disputed the claim.

The club said that trademark cancellations or rejections “create a burden on speech, and burdens on speech are subject to First Amendment scrutiny just like bans”.

The Redskins added that section 2(a) of the Lanham Act “burdens certain disfavoured marks and denies federal benefits to those marks, which indisputably ‘affect[s]’ their use.

“This freewheeling ability to deprive trademark owners of significant benefits because of what they say through their marks strikes at the very heart of the First Amendment values this country holds dear,” the brief added.

Speaking to WIPR, Tam said it was not entirely surprising that the Washington Redskins had a “vested interest” in the case, especially since the court now wants to examine the constitutionality of section 2(a) of the Lanham Act.

“The Redskins is still maintaining that the legislation in question affects its trademark registrations more greatly than ours. For me, it signals a continued misunderstanding on its part over the principles of what free speech means to marginalised communities. It isn’t simply a commodity to be priced and traded like physical property (even though the legal system often does so).”

Last year, the USPTO’s Trademark Trial and Appeal Board (TTAB) said the NFL team could not retain six trademarks containing the term ‘Redskin’ because it was too offensive.

A ‘redskin’ is a slang word for a Native American.

In September last year, the club sued a group of Native Americans that had opposed its marks in an attempt to directly to overturn the TTAB’s decision.

After an unsuccessful attempt by the Native Americans to dismiss the case it will now be heard at the US District Court for the Eastern District of Virginia.

Tam added: “I believe that the USPTO is not the battleground for appropriation language or moral legislation. And though I find the actions of the Redskins morally reprehensible, I believe it’s important to protect its free speech rights to the fullest extent.”