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Washington's NFL team just benefitted from a Supreme Court decision permitting disparaging trademarks

A recent Supreme Court decision could bode well for the Washington NFL team regaining trademark protection for the term “Redskins.”

The Supreme Court of the United States issued a ruling on Monday that should benefit the Washington NFL team’s bid to regain trademark protection for the term “Redskins.” In Matal v. Tam, the Court ruled that the disparagement clause of the Lanham Act violates the Free Speech Clause of the First Amendment, and is thus unconstitutional. All eight Justices joined in part of the decision, with four offering a concurring opinion on part of it. All agreed the disparagement clause of the Lanham Act was a problem.

The Lanham Act was enacted in 1946, and is the primary federal trademark statute of law in the United States. Section 1052(a) of the Act states that a trademark can be refused if it “[c]onsists of ... matter which may disparage ... persons, living or dead, institutions, beliefs, or national symbols.”

The case involved a band consisting of four Asian Americans called “The Slants.” The term is viewed as derogatory to Asians, but the band wanted to reclaim the term and “drain its denigrating force.” The band applied for trademark with the United States Patent & Trademark Office, but were rejected due to Section 1052(a) of the Lanham Act.

The Court ruled that Section 1052(a) is unconstitutional because, “speech may not be banned on the ground that it expresses ideas that offend.” They acknowledged restrictions can be allowed in certain commercial instances, but said restrictions must be narrowly drawn. The clause reaches any trademark that disparages any person, group, or institution, and the Court views this as overly broad.

This could prove to be a big win for the Washington NFL team. Owner Dan Snyder even issued a statement that said he was “thrilled” with the ruling.

In 2014, the Trademark Trial and Appeal Board voted to cancel the six trademarks held by the team under the disparagement clause. A year later, a district court judge upheld the decision in Pro Football, Inc., v. Blackhorse.

Losing federal protection did not mean the team could no longer use the term “Redskins.” Instead, it meant that they would receive no federal protection if they challenged other individuals or companies’ use of the name. Trademark protection has long existed under state common law. However, that would mean the team would have to challenge each potential violation in each individual state court. If the team regains protection under the Lanham Act, it streamlines the process of defending their trademark.

The team appealed the decision to the Fourth Circuit Court of Appeals. Shortly after that, the Tam case was headed to the Supreme Court, and Washington appealed for their own Supreme Court hearing, ahead of any decision by the Fourth Circuit. The Supreme Court elected to hear only Tam.

The decision in Tam suggests Washington will be successful on appeal. The team’s case remains before the Fourth Circuit Court of Appeals. It is likely to be remanded back to the original district court to re-examine it based on the recent Supreme Court ruling. Because all eight justices joined in the decision, it now stands as precedent for the Washington NFL case.