The federal government and attorneys for the Washington Redskins have asked the Supreme Court to review separate cases that could lead to revocation of the "Redskins" trademark as a racial slur, court documents showed Monday.
The team's parent company, Pro-Football Inc., said Monday that it has filed for a writ of certiorari asking the high court to review a U.S. District Court ruling in Alexandria, Virginia, which had ordered the U.S. Patent and Trademark Office in July 2015 to cancel the team's trademark on the ground that it's offensive to American Indians.
The team has appealed that ruling to the 4th U.S. Court of Appeals, but in a court document filed Monday in Richmond, Virginia, the team's attorney, Lisa Blatt, asked the Supreme Court to step in early and hear the case before a second, similar case can upset the apple cart.
In that case, the Patent and Trademark Office last week similarly asked the high court to review a separate ruling by the U.S. Court of Appeals for the Federal Circuit, which found in December that part of the same 1946 law used to challenge the "Redskins" trademark is unconstitutional — in essence approving allegedly offensive trademarks.
The federal circuit case involves an Oregon dance band called The Slants, a name that founder Simon Shao Tam said he picked to "reclaim" the word from its history of derision of Asians.
The Patent and Trademark Office rejected his application to trademark the name because it's "immoral, deceptive or scandalous" — only to see the appeals court side with Tam, finding that that part of the 1946 Lanham Act, which regulates trademarks, violates the First Amendment's protections of free speech.
Pro-Football Inc. said it's concerned that a quick decision in the Tam case could doom its arguments to protect the "Redskins" trademark, which it wants the court to uphold.
The dispute is deeply important to many Native American groups, who have sought for decades to revoke federal protection of the "Redskins" trademark and to force the team to change the name altogether.
But as a legal matter, it's largely symbolic — nothing in federal law prevents Pro-Football Inc. from continuing to use the name "Redskins" or Tam from using the name "The Slants."
What trademark protection does is shield the holder from loss of revenue and visibility by barring anyone else from using the same name in contexts that might be confusing.
For example, team owner Dan Snyder will still be able to use the "Redskins" name regardless whether the Supreme Court decides against him. But if a second party were to begin selling unlicensed merchandise with the trademark, he couldn't seek any remedy under federal law.
The cases are intertwined because at their hearts, they are about the same disputed section of the Lanham Act, John Crittenden, an adjunct professor at the UCLA School of Law, told NBC News last year.
"The Fourth Circuit will certainly look closely at what the Federal Circuit did in Tam," Crittenden said. "The same constitutional arguments were made in both cases."
