In December, a federal appeals court ruled that a provision of the 1946 Lanham Act, which holds that trademarks could be cancelled if they “may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute,” was an unconstitutional violation of the First Amendment. That ruling came about after the U.S. Patent and Trademark Office (PTO) had rejected a trademark for the Oregon-based band because it felt that “The Slants” disparaged Asian Americans.
In a petition filed Monday, the Redskins suggested that the Supreme Court not consider the issue of that provision’s possible unconstitutionality until after their appeal, before the U.S. Court of Appeals for the 4th Circuit in Richmond, is heard. However, the petition asked that if the high court were to take up the Slants’ case, called Tam, then it should have its case heard alongside it, “as an essential and invaluable complement to Tam.”
The Redskins had been stripped of federal trademark protections, pending an exhaustion of all legal recourse, on the grounds that their team’s name was offensive to Native Americans. U.S. District Judge Gerald Bruce Lee rejected the team’s argument that, when the trademarks were granted four times between 1967 and 1990, there was no indication that the vast majority of Native Americans had any objections at those times.
In their opening brief before the appeals court in November, the team’s attorneys argued that not only was the PTO’s rejection of the “Redskins” registration a violation of the First Amendment but that it was arbitrary, given that the office had allowed a wide range of similarly inflammatory names, including “Party With Sluts . . . Redneck Army apparel . . . Booty Call sex aids . . . [and] Dumb Blonde hair products.”
Monday’s petition wants the Supreme Court, if it takes up Tam, to also hear the Redskins’ case because that would allow the justices to consider the question of the Lanham Act provision’s unconstitutionality “presented in a wider range of circumstances,” as well as to “resolve intertwined, equally important questions, and avoid piecemeal review.”
In addition, the petition noted, “Tam involved only an initial denial of registration,” whereas the Redskins’ case involves the overturning of a trademark that had been granted over a period of many decades. The team contends that extended time frame brings into question whether the PTO’s decision was a violation of the Fifth Amendment, as “the government’s decades-long delay between registering a trademark and cancelling the registration … violates due process.”
“The Federal Circuit had no occasion to consider whether due process protects registration-holders when the government’s delay in cancelling a registration has led to the loss of critical evidence and the death of key witnesses,” the petition stated. In any event, though, the Redskins’ legal team “believes that Tam was correctly decided and does not warrant this Court’s review.”
If the Redskins lose their federal protection, they can still sell apparel and other merchandise with that name, and they would have common-law trademark rights.