The Washington Redskins will wait a little longer before their day in court to try to salvage the team’s federal trademark registrations.
On Tuesday, a Richmond federal appeals court agreed to postpone oral arguments that were scheduled for Dec. 9 in the long-running case pitting the NFL team against the U.S. Patent and Trademark Office and groups of Native Americans who find the team’s name insulting.
The U.S. Court of Appeals for the 4th Circuit will wait for the Supreme Court to weigh in on a related battle involving an Oregon-based Asian American rock band named the Slants, whose trademark petition had been deemed offensive and therefore ineligible by the trademark office.
The Slants and the Redskins are fighting more or less the same fight. The agency rejected the band’s trademark in 2011, citing the Lanham Act, which, among other things, bans pejorative names from trademark protection. Similarly, the agency revoked the football team’s decades-old registrations in 2014 on the same grounds.
But Slants member Simon Shiao Tam and Redskins owner Dan Snyder argue that the First Amendment should guarantee trademark status.
Unlike the Redskins, which lost its appeal last year before a federal district judge in Alexandria, the Slants have been winning: In December 2015, the U.S. Court of Appeals for the Federal Circuit in Washington declared that the Lanham Act’s provision outlawing names that “may disparage” is unconstitutional. The ruling forced the Justice Department to appeal to the Supreme Court, which accepted the case in September.
The U.S. government contends that Lanham Act hardly impinges on free-speech rights and that it does not forbid either organization from using their names for commercial purposes, or from seeking state trademark protections. The government objects mainly to one thing: being forced to confer registrations — and therefore what it views as official endorsement — to entities whose names it finds offensive.
And yet, the Redskins have repeatedly brought up the fact that the federal trademark registry is filled with controversial names that were not declared disparaging, such as: Baked by a Negro cookies, Take Yo Panties Off clothing, and Midget Man condoms. (There are many more, unprintable federally protected registrations.)
The Supreme Court has yet to schedule oral arguments in the Slants case, which could take place as late as April. If the high court rules in the band’s favor, the decision would likely influence the Redskins case at the Richmond appeals court.
As much as the Redskins might hope for a Slants victory at the Supreme Court, the team and the band diverge on one point. The Slants say its name reclaims an epithet, and the band has publicly said that “Redskins” is offensive to Native Americans.