The Washington Redskins’ season has ended, but the fate of the football team’s nickname could change greatly during the offseason depending on how the Supreme Court rules in Lee v. Tam, a separate trademark case whose arguments begin Wednesday.
The U.S. Patent and Trademark Office denied the Asian-American rock band “The Slants” a trademark on its name, having decided it was offensive to Asian-Americans. The band has fought the denial all the way to the Supreme Court, arguing that a federal law barring trademarks on racial slurs violates the First Amendment.
The case is serving as a proxy war over the Redskins nickname, whose fans hope that a Slants’ win will have them singing “Hail to the Redskins.” The Cherokee Nation and Navajo Nation have filed a brief opposing the Slants, while the Redskins, under the name Pro Football Inc., filed a brief in favor of the Slants’ case.
Megan Brown, an attorney at Wiley Rein LLP who filed a friend of the court brief in support of the Slants, told reporters it’s “impossible” to talk about the Slants case without discussing the Redskins.
“I think some of the amicus briefs have tried to create a little wedge between this case and the Redskins case on the grounds that here [Simon] Tam is trying to culturally appropriate his identity and Mr. Tam has tried to distance himself from the Redskins saying that effectively the Redskins trademark is pejorative to a separate group of people,” Brown told reporters. “[S]ome amici want Tam to be able to use The Slants but still don’t want the Redskins to be able to use the Redskins.”
The Slants are not fans of the Redskins’ effort and argue on the band’s website that the Redskins team name “has a long history of oppression.” The band argues that its case is fundamentally different from the Redskins and has said that, “Unlike Redskins, the Slants is not an inherent racial slur.” The Redskins case is procedurally different in that it involves a trademark cancellation, and the team’s case has yet to undergo a full review by the U.S. Court of Appeals.
During Wednesday’s arguments, the high court will seek to resolve whether the enforcement of the disparagement clause of the Lanham Act, which guides trademark registration, violates the First Amendment. Brown said that the disparagement and scandalousness prongs of the act are anachronistic, meaning they could be done in by the Slants case.
The case has already revealed fault lines within the federal government about how to view the band. While the Patent and Trademark Office is working to thwart the Slants, the White House included a song from the band about its Supreme Court case in an album aimed at discouraging bullying.
