By agreeing to hear “The Slants” case, Court may decide whether USPTO can cancel “Redskins” trademark registrations.
[Blogmeister’s Note: To say our blogger, Kevin “The Swami” Goldberg, is opinionated is something of an understatement. One particular bug up his butt: the NFL team which is titularly Washington, D.C.’s, even though it practices in Virginia and plays home games in Maryland. As far as Kevin is concerned, we may as well refer to them as the Voldemorts. In any event, the opinions in this post are the Swami’s own, and are not necessarily shared by FHH, its attorneys or its clients. You have been warned.]
We can all safely assume that, for years, Daniel Snyder, owner of the [Voldemorts], has wanted nothing more than to see the team he supported as a child and owns as an adult win the Super Bowl®. (Reminder to broadcasters: if you’re advertising with a football-related theme – especially in December, January or February – that would be “The Big Game”.) With the team’s 1-2 start this season (and yes, both two losses were at home, including one to hated rival Dallas Cowboys), it’s unlikely that the team is going to end the 2016 season on top.
At least not the NFL season.
But thanks to an all-Asian, “ChinatownDanceRock” band, Danny may get a win that he may really want more than an NFL title.That’s because the Supreme Court has agreed to hear a case regarding the constitutionality of Section 2(a) of the Lanham Act. Long-time readers know that that’s the law which allows the United States Patent and Trademark Office (USPTO) to refuse to issue federal registrations to offensive trademarks, i.e., marks that “may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute.”
Why should a “W” in the Supremes be a bigger deal than a Lombardi? Because the USPTO has canceled six “Redskins”-related trademarks owned by the team. That decision was later upheld by a United States District Court for the Eastern District of Virginia. Those trademarks are vital to the franchise’s ability to exclusively sell certain branded merchandise and memorabilia; without the registrations, Danny’s profits – the only thing he presumably covets as much as a title – could be threatened.
Normally, of course, the [Voldemorts’] next move would be to the Fourth Circuit, not the Supreme Court. But, in a possible stroke of good luck, the Asian dance rock band was already one step ahead of the football team. We’re talking about the Slants.
You may recall our earlier posts regarding “The Slants”, a Portland, OR-based outfit with a catchy sound and a somewhat controversial name. They like their name so much that they tried to get a federal trademark registration. But wouldn’t you know, the USPTO deemed “the Slants” to be disparaging to Asians and, therefore, not appropriate for trademark registration – even though all of the members of the band are Asian and they don’t figure it’s disparaging. The Slants appealed to the Federal Circuit. They lost the first round before a three-judge panel. But, after a member of the panel wrote separately to suggest that maybe Section 2(a) violates the First Amendment, the Federal Circuit en banc declared Section 2(a) unconstitutional. The government wasn’t happy with that decision and sought cert at the Supremes … and so it’s The Slants who have reached the Supreme Court first, as the Court granted the government’s petition.
No schedule for briefing or argument has yet been announced and, at least at this point, the [Voldemorts] are still just sitting in the stands watching. That’s not for lack of trying: a few months ago the team – in a move fitting of its owner’s ego – tried to convince the Court that the team should be permitted to by-pass the Fourth Circuit and argue its case along with the Slants’.
(Blogger’s Note: Personally, I’d argue that the Slants’ facts are far superior to the team’s for Supreme Court review purposes but, hey, that’s just me – or maybe not, given this post from The Slants themselves.)
I am The Swami, of course, and I never back away from a prediction when it comes either to the Supreme Court or to sports – and hey, here we’ve got both. So you’re probably thinking that I’m going to make a prediction now, right? Maybe something like, “well, if the Supremes took The Slants case after the band won at the lower level, they certainly must be seeking to reverse that decision”. Or maybe “the Court must realize it needs to address this issue sooner or later and it wants to do so before the Fourth Circuit does, so that obviously means it’s going to declare Section 2(a) unconstitutional.”
Well, you’d be wrong.
The fact that we still have only eight Justices on the Court makes me a bit uncertain about how this will play out. With one Justice missing, the entire dynamic of the Court can change: the way the Justices interact with each other before, during and, especially, after the argument. It’s like how removing an instrument from an orchestra changes the sound, or how a REAL football team has to “play down” after a player is shown a red card. And if a ninth Justice takes the bench before oral argument, that too will change the mix.
So I’m going to wait until after oral argument to make a more informed decision.
I’m very much looking forward to attending that argument in person, if possible. After all, there are some fascinating issues raised in this case (as top legal scholar Eugene Volokh addressed in this excellent piece in the Washington Post). And let’s be honest: I’m also hoping to hear the Justices address the “Take Your Panties Off” arguments.
That argument, advanced by the [Voldemorts] in their Fourth Circuit briefing, poses a simple question. That question is why “The Slants” (or “Redskins”) is so offensive that it was denied trademark protection when the USPTO had no problem with such marks as: “Take Your Panties Off” (clothing); “Dangerous Negro” (shirts); “Slutseeker” (dating services); “Dago Swagg” (clothing); “Dumb Blonde” (beer); “Twatty Girl” (cartoons); “Baked by a Negro” (bakery goods); “Big Titty Blend” (coffee); “Retardipedia” (website); “Midget-man” (condoms and inflatable sex dolls); and “Jizz” (underwear). Hearing Justice Ginsburg rattle those off would totally make it worth a trip down to First Street, even if Daniel Snyder comes out on top in a truly big Supreme Court game.
(And, BTW, as a true devotee of the First Amendment, I’m rooting for the Slants and, yes, in this limited instance, the Dan.)