Arizona Cardinals

Washington Redskins: Recent Developments In The Team's Trademark Case

Updated Mar. 4, 2020 12:03 p.m. ET

Fansided, Desmond Lee/FanSided via Riggo's Rag

Jan 3, 2016; Arlington, TX, USA; A view of a Washington Redskins helmet and logo before the game between the Dallas Cowboys and the Washington Redskins at AT&T Stadium. The Redskins defeat the Cowboys 34-23. Mandatory Credit: Jerome Miron-USA TODAY Sports

The once high-profile Washington Redskins trademark case has, for the time being, taken a back seat to another matter being heard in the United States Supreme Court. What will happen next and when will the Redskins matter get back on track?

For those of you waiting for a decision in the Redskins trademark case, you’ll need to wait somewhat longer. Last month, the Fourth Circuit Court of Appeals decided to stay the team’s case pending the United States Supreme Court’s (“SCOTUS”) resolution of a matter brought by an Asian rock band.

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In that matter, the band is challenging the United States Patent and Trademark Office’s (“PTO”) refusal to trademark its name, “The Slants.” The PTO declined to do so because it found the name disparaging under the Lanham Act, which is the federal law governing trademarks. In the Redskins case, the PTO cancelled trademarks that it previously issued to the team on the very same grounds.

Oct 12, 2014; Glendale, AZ, USA; Detail view of the Washington Redskins logo during the second half against the Arizona Cardinals at University of Phoenix Stadium. Mandatory Credit: Matt Kartozian-USA TODAY Sports

Both Cases Involve Issues Arising Under The First Amendment

The Fourth Circuit decided to stay the Redskins case because the team’s and the band’s matter share a common First Amendment issue. In particular, both are arguing that the Lanham Act’s prohibition of disparaging trademarks runs afoul of the free speech guarantees in the Constitution.

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Last December, the Federal Circuit Court of Appeals agreed with the band and found the Lanham Act’s disparagement provisions unconstitutional. SCOTUS has since agreed to review the Federal Circuit’s ruling. On the other hand, a federal district court ruled against the Redskins on the same First Amendment issue. The team appealed to the Fourth Circuit, which has recently decided to put the team’s case on hold.

If SCOTUS rules in the band’s favor, the Redskins would almost certainly prevail in its case on the strength of its First Amendment argument. (This is “almost” certain since SCOTUS could nuance its decision in a way to make it inapplicable to the team’s case. The likelihood of this is very low, though still a possibility nonetheless.) If not, the Redskins can also win if the Fourth Circuit finds that the PTO shouldn’t have cancelled their trademarks because they weren’t disparaging in the first place.

What To Expect In The Near Future

The next step in the band’s case is oral argument, which is currently scheduled for January 18, 2017. Barring the highly unlikely possibility that a new justice will be appointed prior to then, argument will be heard by the eight justices that currently comprise SCOTUS. This could prove to be significant since the even-numbered panel of justices might deadlock on this issue.

If that occurs, it would allow the Federal Circuit’s ruling to stand. In that case, the Fourth Circuit won’t be bound by the Federal Circuit’s ruling and will have to decide whether or not to follow it. Of course, if the SCOTUS panel that decides the band’s case issues a majority opinion on the First Amendment issue, the Fourth Circuit will be duty bound to honor that opinion.

A decision following oral argument is normally expected by late June or early July, though a ruling may come earlier than that. Between now and then, the incoming President may appoint a new justice who may prove to be decisive on this issue. It’s anticipated that a new one may come very quickly since the White House and Senate, which must approve any SCOTUS nominee, are both controlled by the same party. Without a filibuster to delay Presidential appointments such as SCOTUS justices, the process could very well move quickly and in time for a new justice to decide the band’s case.

After SCOTUS issues its ruling, the Fourth Circuit will then lift the stay in the Redskins case. It will then decide what, if any, significance SCOTUS’s ruling on the band’s case will have on the Redskins’ matter.

Stay tuned.