SCOTUS To Hear Slants Case; Denies Review For Redskins
October 7, 2016 (IP Flow) – Last week the Supreme Court of the United States granted a writ of certiorari for In Re Tam, better known as The Slants case; and on Tuesday denied review for the Redskins case. The cases concern the rejection or revoking of trademarks based on the fact that the terms are considered to be slanderous or disparaging contrary to Article 2(a) of the Lanham Act.
The Slants, an Asian band, appealed their rejection on the basis that they chose their name to reclaim the racial slur, while the USPTO revoked theRedskins trademark in 2015 citing that the term was disparaging against Native-Americans. I covered the cases in more detail here and spoke with the lead attorney on The Slants case regarding their case in June.
For many pundits, this outcome is unsurprising as in essence the Redskins were “piggybacking” on The Slants case on free speech considerations. The Slants argued that the rejection of their trademark is in violation to free speech rights codified in the US Constitution. They maintain that it is not the role of the Trademark Examiner to make subjective determinations as to which terms are to be considered immoral or disparaging.
The Redskins, on the other hand, had their decades-old trademark revoked for its offensive association to Native Americans. There are however differences between the two cases: the term “redskins” has always been a racial slur whereas “slants” has other connotations and meanings. Moreover, The Slants themselves are members of the impacted group – Asian Americans – but the Redskins have no association with Native-Americans.
The strength of the Redskins case lies in arguing for the unjust cancellation of an established and lucrative brand with franchises worth billions. The loss of such trademark protection is burdensome and costly and arguably such a denial after 50 years of protection violates due process. For the case to be reviewed on this basis, it must first clear lower appeals courts in order to be “ripe for review” by SCOTUS.
So for now, attention will remain with The Slants and the SCOTUS’ ruling on the constitutionality of a key piece of trademark legislation.