Trademarks after Tam: A Rise in Offensive Filings and the Washington Redskins

Four weeks ago, the Supreme Court ruling in Matal v. Tam answered a decades long question that has captivated the attention of the media, businessman, sports fans, and legal theorists alike: the team name of the Washington Redskins is not offensive. And neither is “Phuk Sauce”, “Shitty Date Night,” or “Wanna Tap That Ass.”

Well actually, the Supreme Court held that the disparagement clause of the Latham Act was facially unconstitutional, and the trademark at issue was for Simon Tam’s band name “The Slants.” Whether the marks were offensive or not was not at issue. In fact, disparaging trademarks in themselves have never been banned, and businesses have always been allowed to use marks that might be seen as offensive. Unregistered trademarks are still are protected under the law in a variety of ways. The issue before theCourt in Matal v. Tam was the registration of trademarks, and Justice Samuel Alito’s opinion decisively held under the First Amendment that “Speech may not be banned on the ground that is expresses ideas that offend.”

Trademark applicants appear to agree with Justice Alito, as in the weeks following the Supreme Court’s ruling, there has been an uptick in obscene or racist trademark applications that have been filed to the US Patent and Trademark Office. And presumably, as long as the usual criteria for trademark filing is met, they will now likely be registered.

Which brings us back to the Washington Redskins, as the team’s trademark has been under public and legal scrutiny as far back as 1992, when a group of prominent Native Americans led by Suzan Shown Harjo petitioned the USPTO to cancel the Redskins trademark. The mark was actually cancelled by the UPSTO in 1999, before a district court ruling in 2005 reversed the cancellation. More recently in 2014 inBlackhorse v. Pro-Football, Inc., the Trademark and Trial Appeal Board voted to cancel six different trademarks held by the Redskins and this decision was late affirmed by the U.S. District Court for the Eastern District of Virginia. The Washington Redskins then appealed to the 4th Circuit, with the case put on hold while the Supreme Court reviewed Matal v. Tam.

And while Blackhorse v. Pro-Football, Inc. was ongoing, media outlets covering the Redskins had already stopped calling the Redskins by their team name, instead deferring to other moniker’s such as the Pigskins, Skins, and the Washington Football Team. The media’s stance was cemented by the Washington Post – the largest local paper for the team – dropping the use of the team’s name in August of 2014.

But with the holding of Matal v. Tam, the Redskins trademarks seem safe once again from cancellation, and potentially even media scrutiny. Not only has litigation against the team’s mark been dropped, but the New York Times editorial board announced they were reconsidering their stance on the use of the Redskins team name, with many other media outlets following suit.

This begs the question, has anything actually changed with the Redskins team name? Did any new information come to light that makes the term more or less offensive? The answer is no – it is just registrable now. The term is still either offensive or non-offensive depending on your individual viewpoint. And likewise with “Phuk Sauce” or “Shitty Date Night,” that viewpoint doesn’t change just because the trademark is now registrable. Maybe that is the real lesson that can be learned out of all this. Or maybe it is just being able to get to drink Wanna Tap That Ass®  hard cider.

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Billy Whyte is entering his 3L year at Duke University School of Law. Billy previously attended the University of Alabama, where he graduated Summa Cum Laude while majoring in accounting and economics. He once got fourth place in the second grade spelling bee.

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Billy Whyte is entering his 3L year at Duke University School of Law. Billy previously attended the University of Alabama, where he graduated Summa Cum Laude while majoring in accounting and economics. He once got fourth place in the second grade spelling bee.