Federal Trademark Law Ruling Is Great News for the Redskins

A federal appeals ruling in a trademark case revolving around a California rock band’s name could be very good news for Washington’s NFL team as it seeks to restore the federal trademark protection around its name and logos. The US Court of Appeals for the Federal Circuit ordered Tuesday that the band’s name—The Slants—is protected speech under the First Amendment, even if it offends Asian-Americans.

In issuing the 9-2 ruling in favor of the band, which bills itself “the world’s first and only all-Asian American dance rock band,” the court wrote that the bit of federal trademark law that allows the US Patent and Trademark Office to invalidate brand names, slogans, and logos because they are “disparaging” is unconstitutional.

“It 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,” the majority opinion reads. “That principle governs even when the government’s message-discriminatory penalty is less than a prohibition.”

The Slants, NPR reports, know their name can be perceived as a slight against Asian-Americans and have been fighting the PTO since 2009. The band’s lead singer, Jacob Tam, told the network that he “understands that the name is offensive, but he views this as an opportunity to reclaim that slight.”

But the ruling all but guarantees that the local NFL team will win its fight against the PTO’s 2014 decision that invalidated the federal protection around its trademarks, which are widely considered to be slurs against Native Americans.

“This decision strikes down the PTO’s ability to reject a trademark that potentially discriminates or disparages a group,” says Anthony Lupo, the head of Arendt Fox’s entertainment, fashion, and technology practice. “Consequently, the decision to reject the Redskins will be overturned.”

The case against the team is cited seven times in the ruling in favor of The Slants, by Lupo’s count, which should only hasten the team’s push to overturn the PTO ruling against it. “The argument is you’re allowing the government to regulate speech, because the government is making the decision on what is offensive and what is not offensive,” he says.

Despite the obvious First Amendment implications and the overwhelming majority, though, Lupo expects the government will appeal its case against The Slants to the Supreme Court. Stripping the PTO of its power to strike down brand names that potentially discriminate or disparage a group of people takes the government out of the business of regulating speech, but it “swings both ways,” he says.

“This is a very controversial decision, because it means I can go in with a vile term and the PTO can’t make a decision,” Lupo says. “The government has to appeal. What do you have to lose?”

But the case surrounding the Washington NFL team’s name should be a done deal now. “I think this case needs to be dismissed,” says Lupo.

Benjamin Freed

Staff Writer

Benjamin Freed joined Washingtonian in August 2013 and covers politics, business, and media. He was previously the editor of DCist and has also written for Washington City Paper, the New York Times, the New Republic, Slate, and BuzzFeed. He lives in Adams Morgan.