WASHINGTON — A federal appeals court ruled Tuesday that the provision used to strike down the Washington Redskins trademark is unconstitutional.
The full Federal Circuit Court of Appeals issued the ruling in a separate case filed by Simon Tam, a man who has been trying for years to get his band name, “The Slants,” trademarked.
He says the band of Asian-Americans aims to take back Asian stereotypes.
While the Federal Circuit agrees with the Patent and Trademark Office’s Trademark Trial and Appeal Board that the name is disparaging, the majority opinion finds that the legal provision allowing the government to reject trademarks that are disparaging to a substantial composite of the group referenced violates the First Amendment.
The court finds that the restriction is an impermissible government influence on freedom of speech. While the court says Tam would be free to use the name even without the federal trademark protection, he is less likely to use it.
This reverses a 1981 decision by the Federal Circuit that found that rejecting a trademark did not block any freedom of expression. That decision was cited by the judge who, earlier this year, upheld the Trademark Trial and Appeal Board’s rejection of the Redskins’ trademark.
The Washington football team’s appeal is proceeding in a different appeals court, so that court would not necessarily be bound by the federal circuit’s decision.
The Fourth Circuit Court of Appeals in Richmond is expected to hear that case next year. If the Fourth Circuit finds that the provision is constitutional, the differing opinions between the two appeals courts would increase the likelihood that the Supreme Court would hear one or both of the cases.
Tam’s case now returns to the Trademark Trial and Appeal Board, which will have to approve the trademark if there are no other provisions that bar it from being registered.
