On December 22, 2015, the Federal Circuit came to a conclusion regarding the government’s ban on “disparaging” trademark registrations that will likely support the Washington Redskins in its attempt to recover cancelled trademarks. The Federal Circuit held, in a similar case, that it is unconstitutional for the government to prohibit trademark registrations that it deems to be “disparaging,” as such action violates the First Amendment.
Tuesday’s ruling occurred in a similar case, where Seattle-based rock band — The Slants — were refused a trademark registration on a finding that the name was disparaging to Asian-Americans. The Slants filed suit, arguing that the government’s ban on disparaging trademarks violates the First Amendment, which is the same argument raised by the Redskins. The court’s ruling is obviously a big win for the band — which has been fighting to register its name for five years. However, The Slants are not the only winners here. Tuesday’s ruling should have positive implications for The Washington Redskins, who have been publicly battling to reclaim six trademarks that were cancelled by the Patent and Trademark Office (PTO) for the same reason.
The Washington Redskins have maintained the position that the government’s ban on “disparaging” trademark registrations is a violation of First Amendment free speech principles. In its opening brief to the Fourth Circuit in October, the Redskins argued, “[t]here are extraordinary free speech principals at issue far beyond the Redskins trademarks. Cancelling a registration based on the government’s disapproval of a trademark discriminates against speech based on content and viewpoint.”
Based on Tuesday’s holding, it seems as though the Federal Circuit agrees with the Redskins. Circuit Judge Kimberly Moore wrote , “[i]t is a bedrock principle underlying the First Amendment that the government may not penalize private speech merely because it disapproves of the message it conveys.”
Although the Federal Circuit’s ruling provides compelling precedent in favor of The Redskins, it does not necessarily mean that the Fourth Circuit will follow in determining the outcome of the Redskins’ action. However, if the Fourth Circuit decides not to follow the Federal Circuit’s ruling, then the case will likely be submitted to the Supreme Court to resolve the constitutional issue. While there is no guarantee that the Supreme Court will grant certiorari, there is a good chance it will if the two federal appeals courts come to opposite conclusions on the same issue. Either way, the Redskins have substantially benefited from the ruling because they now have compelling precedent in their favor and a chance to be heard by the Supreme Court if that precedent is not followed.