While football teams and fans across the country are gearing up for this weekend’s NFL draft, the Washington Redskins will be preparing for another potential showdown—this one at the Supreme Court. The Redskins petitioned the high court on Monday to hear the case over the team’s controversial trademark registrations. Pro-Football, Inc. v. Blackhorse, et. al., No. 15-1311 (April 25, 2016).
In a case that has garnered national attention, the Trademark Trial and Appeal ordered the cancellation of the Redskins’ six federal trademark registrations in 2014, a decision which was then affirmed by a federal district court in Virginia. Pro-Football, Inc. v. Amanda Blackhorse, et al., 112 F. Supp. 3d 439, 467 (E.D. Va. 2015), appeal docketed, No. 15-1874 (4th Cir. Aug. 6, 2015). The case was still pending on appeal in the Fourth Circuit when the Redskins petitioned for certiorari this week.
The team’s unusual but unsurprising request comes less than a week after the U.S. Government appealed the Federal Circuit’s December ruling that the Lanham Act’s ban on disparaging trademark registrations violates the First Amendment. In re Tam, No. 2014-1203 (Fed. Cir. Dec. 22, 2015).
The Federal Circuit reached this decision en banc while hearing the analogous case of The Slants, an Asian American rock dance band that was denied a trademark registration under the same Lanham Act provision at issue in the Redskins’ case. Id.
In its petition, the Redskins urge the Supreme Court to hear the case as a complementary companion to The Slants appeal, which is styled as Lee v. Tam, No. 15-1293 (April 20, 2016). Pro-Football, 15-1874 at 3.
The Redskins’ case differs from Lee v. Tam in that it deals with the cancellation of a trademark registration instead of an initial refusal. Taking the Redskins’ case, the team argues, would allow the Supreme Court to consider the application of the disparagement clause over a broad spectrum of facts. Id. at 14. Does the risk of cancellation impose a higher burden on a trademark owner’s free speech rights than an initial refusal? Should the government’s interest in dissociating itself from disparaging marks apply in the context of cancellation? These are the issues the Redskins say they can bring to the constitutional conversation. Id.
They also appeal two additional constitutional issues—whether the Lanham Act’s disparagement clause is impermissibly vague under the Fifth Amendment and whether cancelling a trademark registration on disparagement grounds several years later is a violation of procedural due process. What they don’t challenge, however, is the lower court’s affirmation that the Redskins’ marks are disparaging.