Slants win Trademark Rights Suit On First Amendment Grounds Despite Using Racial Slur as a Trademark

Many people and organizations have long tried to get the NFL team known as the Redskins to change their name. The name is certainly offensive to most Native Americans and is a racial slur, but it’s not illegal to use it.

The football team has maintained a trademark on the Redskins name since 1967, but when they went to renew it in 2014, the trademark office refused, saying the name disparaged Native Americans. The team sued the trademark office in Virginia, where a trial judge ruled in favor of the trademark office. The team appealed the decision to the United States Court of Appeals for the Fourth Circuit, which is also located in Virginia, but that court put off ruling on the case until after the U.S. Supreme Court had given its ruling on Matal v. Tam, in which an Asian-American dance-rock band is seeking a trademark for their name: the Slants.

While the trademark office insisted the name was offensive, the band members said that was not their intention in coming up with the band’s name. Instead, they were looking to empower themselves and other Asian Americans by repurposing a derogatory term, much like the way homosexuals have taken ownership of the term “queer.”

All eight of the judges were unanimous in ruling in favor of the Slants, though their reasoning differed (Neil Gorsuch was not included in the decision, as the hearing was in January, prior to his appointment). Half the judges maintained a ban on trademarks for disparaging names would be in violation of the First Amendment, even when taking into account that judicial scrutiny for commercial speech tends to be relatively relaxed compared to other forms of speech. The judges pointed out that the First Amendment protects all speech, however hateful or offensive.

The other half of the judges said the band’s name could not be denied a trademark on the basis of the First Amendment as it applies to viewpoint discrimination. As Justice Kennedy wrote in their dissenting opinion, viewpoint discrimination poses a significant threat because to enter into such territory is to allow for government censorship, something the First Amendment was explicitly designed to prevent.

All eight of the ruling judges did agree on some points. For example, they all rejected the assertion that the Court’s ruling in Walker v. Sons of Confederate Veterans could be applied to Matal v. Tam. In the former case, the Supreme Court had ruled that the state of Texas could refuse to put the Confederate flag on license plates because license plates are considered speech by the government.

By contrast, trademarks, although protected by the government, do not constitute speech made by the government. To say it is is to apply all sorts of contradictory statements to the government, most of which endorse particular commercial products.

Despite the fact the decision to allow the band to keep their name was unanimous, the fact that the judges were split on the reasoning for the decision will most likely lessen the extent to which their decision can be applied to similar cases in other courts. Nevertheless, attorneys for the Redskins are confident the recent Supreme Court ruling means they stand a good chance of winning their own trademark battle.

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