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

Updated Mar. 4, 2020 4:32 p.m. ET

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The Supreme Court Conducted Oral Argument In A Case Which Could Impact The Redskins Trademark Matter. What, If Anything, Can We Tell From This Oral Argument?

An Asian rock band’s lawsuit claiming that the Lanham Act’s prohibition against disparaging trademarks violated the First Amendment was heard by the Supreme Court (“Court”) earlier this week. The band had sued the Patent and Trademark Office (“PTO”) after it rejected the band’s application to trademark its name “The Slants” on grounds that its name was “disparaging.”

The Act, which is the federal law governing and regulating trademarks, empowers the PTO to decide whether to deny disparaging trademarks. The band’s case has direct relevance to the Redskins trademark case since it is also arguing that the PTO ran afoul of the First Amendment when it cancelled several of its decades-long trademarks.

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.

Dec 4, 2016; Glendale, AZ, USA; Washington Redskins owner Daniel Snyder (right) and head coach Jay Gruden prior to the game against the Arizona Cardinals at University of Phoenix Stadium. Mandatory Credit: Mark J. Rebilas-USA TODAY Sports

The Band’s Lawyer Predictably Took The Position That All Offensive Names Are Protected By The First Amendment

Not surprisingly, the band’s lawyer, John Connell, pressed the absolutist position that any name, however offensive it may be, was protected by the First Amendment. Justice Sotomayor, however, tested the limits of his view by asking him whether the PTO should approve a trademark that “Donald Trump is a thief” even if it was proven that Trump, in fact, was not. Connell answered that the PTO was constitutionally duty bound to do so, to which Justice Sotomayor responded, “That makes no sense.”

Chief Justice Roberts, however, appeared to help Connell out by lobbing a softball question his way. The Chief Justice asked Connell whether the PTO could reject applications containing false statements like that on grounds that they were libelous, a form of speech that doesn’t enjoy First Amendment protection. Connell quickly took the hint and moderated his position to one took into account the distinction between trademarks that are objectively false and others which express an opinion.

The Chief Justice also assisted Connell in answering a hypothetical about a government-sponsored, Shakespearean-themed festival. If the purpose of that festival was to celebrate Shakespeare, couldn’t the government, the Chief Justice wondered, ban someone who wanted to engage in anti-Shakespearean conduct? Connell seemed to agree, explaining that the festival would be a limited forum created by the government. That, however, didn’t entirely satisfy the Chief Justice, who again led Connell into the answer he wanted to hear. In the Chief Justice’s view, enforcing a pro-Shakespearean message in his hypothetical might be appropriate since the festival is a small subset in the overall larger scheme of government regulation. More specifically, the festival wouldn’t compare to the “comprehensive nature” of the trademark program set forth in the Act.

But Connell had difficulty responding to a question by Justice Sotomayor as to whether there was a First Amendment issue at all in the band’s case. She pointed out that the PTO’s function is to simply extend trademark protection to a name or slogan. If it rejects a trademark application or cancels a trademark, that doesn’t prohibit organizations like the band or the Redskins from exercising their First Amendment freedoms in using those names. Because it doesn’t, Justice Sotomayor asked how that burdens any First Amendment right that the band – or anyone else like the team – has. Connell danced around that question, instead arguing that drawing distinctions between offensive and non-offensive trademarks would amount to viewpoint regulation, something which the Constitution forbids.

Jan 1, 2017; Landover, MD, USA; Washington Redskin fan in the stands against the New York Giants during the first half at FedEx Field. Mandatory Credit: Brad Mills-USA TODAY Sports

The PTO’s Lawyer Had Trouble Answering Whether The PTO Was Engaging In Viewpoint Discrimination By Banning Disparaging Trademarks

Justice Kagan took up the viewpoint discrimination raised by Connell with Malcolm Stewart, the PTO’s lawyer. Stewart struggled in answering Justice Kagan’s questions about whether the Act’s ban on disparaging trademarks was a restriction based on the viewpoints expressed by an applicant. In particular, she noted that the PTO, under his view, would approve of a trademark that the American flag is a “wonderful emblem,” but would reject one that the flag would be a “terrible emblem.” Said Kagan: “that’s what this regulation does.”

The Court also expressed problems with Stewart’s view that the PTO was a “government program” like a fire or police department. Justice Alito asked whether “government programs” like them could decide to provide municipal protections based on the viewpoints held by citizens they were meant to serve. Stewart stumbled in cobbling together a response before conceding that Justice Alito’s hypothetical did, in fact, raise issues under the First Amendment.

Stewart’s attempt to analogize the PTO to a room in a school also backfired. If a teacher in that room can ban racial epithets, Stewart queried, why can’t the PTO reject disparaging trademarks? Justice Kennedy shot back at Stewart, asking whether the government should become an “omnipresent schoolteacher” deciding whether trademarks are disparaging. Stewart meekly countered by arguing that the room (like the PTO) represented a small part of the nation’s larger regulatory scheme. Because the room (and PTO) would constitute a limited intrusion on expressive conduct, that, implied Stewart, should pass Constitutional muster. But the Chief Justice again disagreed, noting that “if you’re talking about the entire trademark program, it seems to me to be something else.”

Dec 4, 2016; Glendale, AZ, USA; Washington Redskins general manager Scot McCloughan (left) and owner Daniel Snyder prior to the game against the Arizona Cardinals at University of Phoenix Stadium. Mandatory Credit: Mark J. Rebilas-USA TODAY Sports

What Can We Expect After Oral Argument?

Oral argument can, at times, provide onlookers a guide as to how the Court may rule on a case. But oral argument, in other instances, proves to be entirely misleading where the Court’s ultimate ruling turns on grounds never mentioned during those proceedings. It’s uncertain what relevance, if any, the issues raised during the band’s oral argument will have in its case.

Indeed, other issues that were raised peripherally in the oral argument may loom largely in deciding the band’s First Amendment arguments. One such issue was Justice Ginsburg’s question whether intent to disparage should matter. If it does, this would impact an argument in the Redskins case that its name was never meant to offend anyone.

Justice Ginsburg also questioned whether the Act’s use of the word “disparaging” was too vague for anyone to clearly understand. In a related point, she noted the PTO’s failure to consistently apply what it deemed to be “disparaging” names. As an example, Justice Ginsburg cited to instances where the PTO approved some trademarks that contained one racial slur but rejected others with the very same epithet. While this line of questioning may signal Justice Ginsburg’s dissatisfaction with the PTO’s position, it’s unclear how it will sway her and the rest of the Court when it finally rules in the band’s case.

A decision will be due by early July. The transcript and audio for the oral argument are publicly available, via the Supreme Court’s official website.

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