In July, the U.S. District Judge Gerald Bruce Lee ruled that the Washington NFL Team’s six federal trademark registrations should be canceled because the team’s name is offensive to Native Americans. The team appealed to the U.S. Court of Appeals for the Fourth Circuit, arguing that the ruling violates its First Amendment rights and was arbitrary because other inflammatory names still enjoy trademark protection.
On Monday (April 25), the team petitioned the Supreme Court to review its pending appeal. As The Washington Post reports, the team requested that SCOTUS consider the case (Pro-Football, Inc. v. Amanda Blackhorse, et al.) alongside Lee v. Tam.
The Lee vs. Tam case involves a band called “The Slants.” The U.S. Patent and Trademark Office [U.S. PTO] originally rejected a trademark for the band because it found that the name was disparaging to Asian Americans. However, last December, a federal appeals court found that ruling—which was based on the 1946 Lanham Act, which states that trademarks can be cancelled if they “may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute”—was a violation of the First Amendment.
Washington believes that Lee v. Tam was correctly decided and does not warrant the Supreme Court’s review, but if it does take up the case, the team believes that the court should look at the Redskins ruling as well because it presents a “wider range” of circumstances related to the unconstitutionality of the Lanham Act.
The petition specifically asks SCOTUS to consider three questions:
- Whether the disparagement clause of the Lanham Act violates the First Amendment
- Whether the clause is so vague as to make it a violation of the First and Fifth Amendments
- Whether the delay between the team’s first registration and eventual cancellation of said registration violates its right to due process
Even if the Supreme Court and the appeals court leave the current ruling as it stands, the team will still be able to use the name, as it will enjoy common-law trademark status as a result of many years of use.
Activists are critical of the SCOTUS petition. Change the Mascot leader and Oneida Indian Nation Representative Ray Halbritter said the following in a statement:
Instead of making a positive change in the spirit of mutual respect and progress, the NFL franchise is reportedly asking the Supreme Court to declare that it somehow has a special constitutional right to government-supported bigotry. The First Amendment does not guarantee anyone such a right—not even billionaire football owners. The Constitution, however, does guarantee basic respect for civil rights and equality, which is all that people of color have asked by urging the NFL to stop promoting a racial slur as the Washington team’s name. We hope the highest court in the land stands on the right side of history and honors the spirit and letter of the Constitution by ignoring this absurdly frivolous appeal.