A Portland-based band called “The Slants” is playing this week in a venue that seats only 400, but their message will resonate with Washington Redskins fans and fans of other sport entities with racially-charged names and logos. The venue is the Supreme Court of the United States and the band’s message involves a fight for its name. The case is an appeal from a decision from the U.S. Patent and Trademark Office (UPTO) to refuse registration of the band’s name based on the grounds that name is disparaging. The UPTO consistently refuses to associate the federal government with racial slurs, insults, and profanity in trademarks. In fact, the USPTO’s approach to marks deemed to be offensive included a relatively recent decision to cancel trademark protection for the Washington Redskins.
For decades, members of Native American communities consisting of tribal nations and national tribal organizations have called for Washington D.C.’s football club to change its controversial name and logo, and for decades the club has refused. The USPTO’s decision to cancel trademark protection for the only National Football League (NFL) franchise in the nation’s capital has left the controversial marks legally vulnerable to uses unauthorized by the football club or the NFL. The Slants were also denied the right to their name on the same grounds and this is why the Washington Redskins and their fans are tuned into the Supreme Court this week.
The question before the Supreme Court is whether the USPTO’s decision not to protect the Slants’ name and marks violates the First Amendment’s freedom of speech. Tradenames and marks are valuable forms of commercial speech because they are how consumers identify product brands, like the Slants or the Washington Redskins. Commercial speech is protected by the First Amendment, but not to the same degree as some other types of speech, like political speech. Conversely, obscenity is a type of speech that is not protected by the First Amendment.
One key factor, however, may limit the applicability of the Slants case to the Redskins’, even if the band ultimately wins the right to register its racially-charged name. That factor involves the way in which the band uses its offensive name. Specifically, the band is composed of Asian-Americans who assert that they have re-claimed and re-purposed a racially-offensive slur by transforming the insult into something new and expressive. The expression behind the use of the band name provides a strong basis for the band’s First Amendment challenge to the USPTO’s decision. If the Supreme Court finds in favor of the band, it may do so based on the expressive value inherent to the band’s use of the slur.
And if the Slants are successful on that basis, it seems less likely that the Redskins will be able to find similar expressive value in the way the organization has made use of its offensive name and marks. The Washington Redskins have not taken a slur and transformed it for the purpose of adding new expressive meanings. Unlike the way the band has used the term “slants”, the Redskins name and team logos appear more totemic than ironic or satirical.
The Redskins could, however, benefit from a Supreme Court determination that First Amendment prohibits the USPTO from refusing to register offensive names and marks. In oral argument this week, Justice Kennedy raised this possibility with a question as to why the offensive names and marks are not protected in trademark, but offensive speech is protected in copyright. A possible answer to Justice Kennedy’s question may be found in the fact that in order to receive copyright protection, a work must be original and include some form of creative expression. Still, the possibility exists that the USPTO may lose the power to refuse registration for offensive marks and this would allow both the Slants and the Redskins to obtain trademark protection for their names and logos.
At this stage, the degree of influence that the Slant’s case could have in resolving the Redskins’ case is uncertain, at best. What is clear is that the controversy surrounding the Washington Redskins is a heated one that is filled with passionate opinions on both sides.
Post by: Thomas A. Baker III, J.D., Ph.D., Ruling Sports Contributor(@DrTab3)
Thomas A. Baker III, J.D., Ph.D. is a commercial litigator turned professor of sports law at the University of Georgia. His research is mostly on the application of commercial laws to sport. Follow him on Twitter @DrTab3.