On November 16, 2016, Native American organizations, including the National Congress of American Indians, filed a brief of amici curiae in support of the United States Patent and Trademark Office’s (PTO) ban on offensive and disparaging trademarks. The statute at issue before the Supreme Court is Section 2(a) of the Lanham Act, 15 U.S.C. 1052(a), which provides that no trademark will be refused registration because of content unless, inter alia, the trademark “[c]onsists of . . .matter[s] which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute.” The brief was filed following the Supreme Court’s grant of certiorari in September to Lee v. Tam, a case concerning an Asian-American dance-rock band called the Slants, to decide whether the federal statute violates free speech rights under the First Amendment.
While the brief concurred with the government’s argument that trademarks are commercial speech and therefore Section 2(a) is a permissible regulation, the brief also focused on the longstanding use of derogatory Native American imagery by sports teams’ trademarks which they claim warrants regulation. Focusing on the Washington Redskins in particular, the brief asserts that the use of Native American imagery and symbols by sports mascots dehumanizes and demeans the Native American cultures, creating harmful stereotypes that cause lastly damage for Native American youth.
The PTO granted trademark registration to the Washington Redskins in 1967, 1974, 1978, and 1990, however in 2014 the PTO cancelled the registration of six trademarks because the PTO believed the trademarks disparaged Native American culture. The team filed suit similarly alleging a violation of the team’s free speech guarantee, Pro-Football Inc. v. Blackhorse, but lost at the trial level, and are currently scheduled to argue before the U.S. Court of Appeals for the Fourth Circuit in December. Despite the Fourth Circuit having not yet ruled on the case, the team asked the Supreme Court to review its case along with the Slants case. The Supreme Court did not address the Redskin’s petition when it granted certiorari to Tam. Whether the Supreme Court finds Section 2(a) constitutional or not will likely have an impact either way on the Redskins case.