Supreme Court Hears Arguments in Trademark Case

(1/19/17) The United States Supreme Court heard arguments yesterday in a case that will probably determine whether the Washington Redskins football club will be allowed to re-register “Redskins” as its federal trademark. Although the football club has used the nickname for 85 years, the U.S. Trademark Office cancelled its trademark registration two years ago under a provision of the trademark statute that prohibits registration of offensive and disparaging words and phrases. That cancellation was upheld in federal courts.

In a separate case, however, federal courts have ruled that the “offensive and disparaging” limitation is unconstitutional because it violates the First Amendment's free speech guarantee. In that case, a group of Asian musicians in a band calling itself “The Slants” made application for a trademark registration. The Trademark Office rejected the application, but lower federal courts ruled that the band has a constitutional right to use and register the phrase as its trademark even if the words may be offensive to Asians. The federal government appealed that decision to the Supreme Court, which heard arguments yesterday.

Observers at the oral argument reported that the questions asked by justices on the Supreme Court indicated that the justices were skeptical of the constitutionality of the statute. A decision will likely be published during the spring.