By now, most people are aware that last summer, the United States Patent and Trademark Office canceled the Washington Redskins’ trademark registration after finding the team’s name and logo to be disparaging to American Indians. Last week, however, the team took a serious interest in a lower-profile case involving a band called the Slants.
Previously, the USPTO refused the band’s two trademark applications, declaring that “slants” is disparaging to people of Asian descent. On Thursday, June 18, the team threw its support behind the band, arguing that “depriv[ing] trademark owners of significant benefits because of what they say through their marks strikes at the very heart of the First Amendment values this country holds dear[.]”
A victory for the band is of great importance to the Redskins’ case, as it would involve the Federal Circuit overturning a precedential 1981 case, In re McGinley, that ruled that trademark law’s prohibition of offensive marks is constitutional. After the opinion in the band’s case, the appeals court vacated the panel ruling and ordered en banc proceedings on this First Amendment issue.
While an en banc ruling overturning In re McGinley would not be binding on the Redskins’ case, as the cases are in different circuits, it certainly would not hurt. Were the en banc ruling to overturn In re McGinley and the team to then lose its First Amendment argument, it would set up a circuit split, making it easier to send the issue to the Supreme Court.