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Washington Redskins: Update On The Trademark Case That Could Impact Team’s Name

By Desmond Lee

Dec 4, 2016; Glendale, AZ, USA; General view of a Washington Redskins helmet and logo prior to the game against the Arizona Cardinals at University of Phoenix Stadium. Mandatory Credit: Matt Kartozian-USA TODAY Sports
Dec 4, 2016; Glendale, AZ, USA; General view of a Washington Redskins helmet and logo prior to the game against the Arizona Cardinals at University of Phoenix Stadium. Mandatory Credit: Matt Kartozian-USA TODAY Sports /
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Dec 4, 2016; Glendale, AZ, USA; Detailed view of a Washington Redskins helmet in the hand of a player against the Arizona Cardinals at University of Phoenix Stadium. Mandatory Credit: Mark J. Rebilas-USA TODAY Sports
Dec 4, 2016; Glendale, AZ, USA; Detailed view of a Washington Redskins helmet in the hand of a player against the Arizona Cardinals at University of Phoenix Stadium. Mandatory Credit: Mark J. Rebilas-USA TODAY Sports /

There Were Many Issues, But Two Major Ones

The central focus of the hearing turned on what limits, if any, the Constitution placed on the PTO in determining whether a trademark was disparaging. As pointed out during the hearing, trademarks normally serve a “source identification” function. An example of “source identification” is a trademark like Nike’s “Just Do It” slogan, which directs consumers’ attention to its products. Trademarks, however, can also convey a political or social message in them, such as the band’s name “The Slants.” In particular, the band’s use of its name was its attempt to co-opt a racial slur commonly used to describe Asians.

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While the Court peppered the lawyers for both sides with a battery of questions and hypotheticals, two major issues emerged during the hearing. One line of inquiry was whether the government could limit trademark protection to “source identification” alone even if some trademarks contained expressive messages in them. If so, Congress could permissibly erect barriers to trademarks that were offensive or “disparaging” and thus properly deny the band’s application to trademark its name or cancel the Redskins long-standing trademarks.

On the other hand, the Court also pondered whether the First Amendment prohibited the PTO from using its powers to single out trademarks that contain political or social messages the PTO concludes are disparaging. If the First Amendment forbids the PTO in doing so, the PTO’s refusal to trademark “The Slants” – and its cancellation of the Redskins trademarks — wouldn’t square with the free speech guarantees in the Constitution.

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