The federal government is urging against the Washington Redskins’ request for their high profile trademark case, Pro Football Inc. v. Blackhorse, to be heard by the U.S. Supreme Court before a ruling by a federal appeals court. The government claims the Redskins have no justification for the move, as the Supreme Court rarely grants certiorari in a case that has not been heard first by a federal appeals court.
The Redskins are claiming the timing is perfect for their case to move to the Supreme Court, which is preparing to hear a separate case, Tam v. Lee, regarding the same question: whether a government ban on offense trademark registrations is in violation of the First Amendment. The team’s counsel has pointed to two relatively recent cases which were granted certiorari by the Supreme Court before appellate judgments — U.S. v. Booker in 2005 and Grutter v. Bollinger in 2003.
Tam v. Lee concerns an all Asian-American band from Oregon named the “Slants” who decided on the name to make a statement about racial and cultural issues in order to “take ownership” of Asian stereotypes. In both cases, the law under review is section 2(a) of the Lanham Act, a federal statute governing trademarks, service marks, and unfair competition. Section 2(a) refuses registration of a trademark if it consists of “matter which may disparage…persons, living or dead…or bring them into contempt, or disrepute.” In Tam, the U.S. Court of Appeals for the Federal Circuit held section 2(a) to be unconstitutional in a 9-to-3 decision. The presiding judge Kimberly A. Moore held that while some rejected trademarks convey hurtful speech, the First Amendment “protects even hurtful speech.”
After the Trademark Trial and Appeal board revoked the Redskins trademarks last summer, a federal judge in Virginia held that section 2(a) does not violate the First Amendment. The Redskins appealed to the Fourth Circuit, which has not yet issued a ruling.