Supreme Court Ruling Likely To Impact Washington 'Redskins' Trademark Case

The United States Supreme Court published a decision in a trademark case today that will impact the Washington football club's prior legal fight over its racist trademark. In Matel v. Tam, the court held it was unconstitutional to refuse to trademark the Asian-American band name "The Slants," because a clause in the federal law governing trademarks violated the first amendment of the Constitution. Washington was making a similar argument in an appeal on the cancellation of six of its trademarks, but while announcing it would hear The Slants' case, the Supreme Court declined to hear Washington's.

Despite not getting his day in court, Washington owner Dan Snyder is now all-caps THRILLED to find himself on the winning side (for once). The clause under which the trademark was cancelled is now unconstitutional according to the highest court in the land and it would seem the path is clear to once again be the owner of a racist trademark.

The Slants were initially refused a trademark because the United States Patent and Trademark Office considered the band's name, as it did with "Redskins," to be disparaging and thus in violation of the disparagement clause in the Lanham Act. The disparagement clause provides that a trademark will be refused if it "Consists of or comprises…matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute."

Under the clause, a racist term—like, say, "Redskins"—requires the PTO to refuse registering the trademark. in Washington's case, six trademarks were cancelled by a district judge who was unpersuaded by the team's free speech argument because he held trademark protection was an endorsement of the federal government, and therefore could not be used in a way that was offensive to others.

The disparagement clause's fate, however, was likely sealed the moment the Supreme Court denied the Washington appeal, in favor of The Slants'. The band's trademark was denied because the PTO held that it disparaged Asians and Asian-Americans, however the Slants argued that the name was specifically chosen as an attempt to "reclaim" the term, and that the disparagement clause violated the first amendment. The fact pattern here—group who would otherwise be offended by this specific name, but is using it to fight back against racism—is a much easier sell than "NFL football team at the center of a national controversy over its obviously racist nickname based on a fictionalized origin story wants to keep it's racist nickname."

In gutting the disparagement clause, the court held that it violated the first amendment because a trademark was not government speech—a principle of constitutional law that holds the First Amendment does not apply when the government is the speaker—but rather private speech, which is subject to the first amendment protections against viewpoint discrimination. While quoting prior precedent, the Court reaffirmed that the first amendment required protecting all speech, even hateful, because "the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers."

TL;DR SCOTUS: refusing a racist trademark is discriminatory to racists.