The Continuing Saga of the Uncertain Fate of the Washington Redskins’ Trademark Registrations
As reported in an earlier blog (July 2014), the Trademark Trial and Appeal Board (TTAB) in the United States Trademark Office bowed to pressure from an allegedly aggrieved group of American Indians and cancelled six federal trademark registrations pertinent to the Washington Redskins. Keep in mind that it was federal registrations that were cancelled, not trademarks per se. The TTAB used §2(a) of the Lanham Trademark Act of 1946, 15 USC 1052(a) as its basis for the cancellation. That Section provides, in part, that federal registration may be denied or refused if a Mark consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.
Not surprisingly, the management of the Redskins appealed the decisions of the TTAB and an affirming federal district judge to the 4th Circuit Court of Appeals, which sits in Richmond, VA and sought redress for an unlawful taking under the 5th Amendment of the U.S. Constitution. That appeal is pending.
In the meantime, members of the Asian American rock band, Slants, were also seeking redress for a refusal (not a taking) by the TTAB to register their group name, largely for the same reasons that the Redskins were denied the continued registration of their Marks, i.e., §2(a) of the Lanham Trademark Act (supra). The members of the group, Slants, appealed to the Court of Appeals for the Federal Circuit (CAFC), which sits in Washington, D.C.
About a week ago (Dec. 22, 2015) the CAFC, issued a decision in the Slants case (In Re Tam) holding that the First Amendment of the United States Constitution FORBIDS (emphasis, mine) government regulators (members of the Trademark Trial and Appeals Board) from denying federal trademark registration because they find the speech likely to offend others. The CAFC continued by saying that even when speech inflicts great pain, our Constitution protects it “to ensure that we do not stifle public debate.” And, in so holding, found §2(a) of the Lanham Trademark Act, supra, to be unconstitutional.
That is a significant holding. If § 2(a) is unconstitutional for the purpose of refusing or denying federal registration for a trademark, I would think that it is un-Constitutional, a fortiori, for the cancellation of the registration of a trademark. However, that is only my opinion; I’m only an observer.
The questions now become, will the 4th Circuit Court of Appeals adopt or embrace the holding of the CAFC and find § 2(a) of the Lanham Act to be unconstitutional in the Washington Redskins case? In other words, if § 2(a) is unconstitutional for denying a registration, is it unconstitutional for the taking of a registration, and thus mandating the return of the Redskins’ registrations? Or, will the 4th Circuit beg to differ and reach a decision at odds with In Re Tam and sympathetic with the TTAB, perhaps on the basis that a taking is not a refusal and In Re Tam does not apply? Or, maybe the 4th Circuit will ignore In Re Tam and affirm the cancellations, or ignore In Re Tam, reverse the TTAB and remand for restorations of the registrations? And, finally, what about the Supreme Court? If and when will they get involved to determine if and when the Constitution is offended by § 2(a) of the Lanham Act? Clearly, the appellate scenarios are seemingly endless, along with the opportunities to blog and speculate. More later.