UCLA School of Law’s Supreme Court Clinic was behind a big free speech victory on June 19, when the U.S. Supreme Court held that a federal law prohibiting disparaging trademarks violates the First Amendment. “The Supreme Court vindicated the Team’s position that the First Amendment blocks the government from denying or cancelling a trademark registration based on the government’s opinion”.
“Nothing in the opinion undermines the decision of the (USPTO) or the District Court that the term “redskin” disparages Native Americans”, Jess Witten, an attorney for Native Americans who has been fighting against the football team’s name, told the Washington Post.
Baseball Commissioner Rob Manfred said earlier this year that he wants the Indians to transition away from using the red-faced, smiling logo.
An Asian-American rock group has won their ongoing legal battle to register the name of their band, The Slants, as a trademark.
Justice Samuel Alito wrote the majority opinion, which was joined by the rest of the Court in its 8-0 conclusion, albeit not universally in its reasoning.
The court’s ruling in an unrelated case struck down part of the trademark law that bars a trademark on disparaging or offensive terms. And now with The Slants’ win at the court, the Redskins team may soon be able to also get its name trademarked as well.
“Holding that the registration of a trademark converts the mark into government speech would constitute a huge and unsafe extension of the government-speech doctrine, for other systems of government registration (such as copyright) could easily be characterized in the same way”, Justice Samuel Alito wrote.
In the separate Redskins case, a trademark board in 2014 canceled the team’s six trademarks at the request of Native American activists on grounds that the team name disparaged Native Americans.
St. John’s University intellectual property law center director Jeremy Sheff said while the Supreme Court has essentially shut the door on legal challenges to the Redskins name, “there can still be social pressure brought to bear”. The office said the word “slants”, which has been used as a racial slur referring to the eyes of Asian people, offends Asians. “It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend“, Alito wrote.
“If you had a mascot dressed up like the pope with a gold cane…and singing Ave Maria and waving a crucifix up and down instead of a tomahawk, that name would change immediately” Bellecourt said.
The Redskins case is expected to resume now that The Slants ruling has been handed down.