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Sports law expert calls trademark decision 'reprieve' for Redskins, Indians

Sports law expert calls trademark decision 'reprieve' for Redskins, Indians

"The First Amendment guards against laws 'targeted at specific subject matter, ' a form of speech suppression known as content based discrimination", their decision statement said.

In court, the band argued that its name was "an attempt to "reclaim" the term", according to Vice Sports.

In its ruling, the court argued that historically, the Lanham Act has been applied inconsistently by the Trademark Office.

As NPR's Nina Totenberg has reported, "the trademark office has denied registration to a group calling itself "Abort the Republicans", and another called "Democrats Shouldn't Breed".

Still many articles recapping the decision characterized it as a win for the Washington, D.C., football team.

The Supreme Court issued a ruling this week in which it said that the US Patent and Trademark Office (PTO) can not deny trademark registrations that it deems inappropriate or disparaging.

The U.S. Supreme Court has ruled to protect other potentially hateful or hurtful speech in recent years.




"We respectfully disagree with the Court's decision". If the federal registration of a trademark makes the mark government speech, the Federal Government is babbling prodigiously and incoherently.

The government is not required to maintain viewpoint neutrality on its own speech. To do so, all eight justices who participated in the case said, would be a clear violation of the First Amendment's guarantee of free speech.

Lawrence Nodine, an intellectual property litigator who was one of three who wrote an amicus brief for the International Trademark Association in the band's case, said the decision was the right outcome. "Younger generations seem to have more tolerance for word choices that others may consider offensive". "But in my view it was just not possible to defend the statute".

They were responding to the high court's ruling in Matal v. Tam, in which Simon Tam challenged the government's denial of a trademark for the name of his band, "The Slants". It also said that what does, or does not constitute disparagement, should not be left to whims of a few patent officers. Adrian Jawort, in his November 12, 2012 article in Indian Country Today entitled "Redskins Not So Black and White", dismissed that as simply "revisionist history". However, I do think there will be public backlash against names that might be offensive to a particular group of people. A federal appeals court in Washington later said the law barring offensive trademarks is unconstitutional and the Supreme Court agreed.

In 2014, the Trademark Trial and Appeal Board of the U.S. Patent and Trademark Office cancelled six trademarks held by the Washington Redskins, in a 2-1 vote, declaring that the term "Redskins" is disparaging to a "substantial composite of Native Americans".

Schiller, the intellectual property attorney at Boies Schiller Flexner in NY, is a lifelong fan of the team.


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