The Supreme Court opened its fall term by refusing to hear the unusual appeal by the Washington Redskins of a Patent & Trademark Office decision to cancel federal protection of their name.
As SCOTUSblog explained it, the team had sought an unusual decision from the High Court to hear the appeal even before a lower appeals court—the Fourth Circuit—had weighed in, something the Supreme Court rarely does.
The Washington Redskins were hoping the court would combine their case with the appeal by the Obama Administration of an appeals court decision—in the case of an Asian-American band trying to trademark the name "Slants"—that the disparagement provision in law that prohibits trademarks that "disparage persons, institutions, beliefs, or national symbols" is unconstitutional.
Washington Redskins owners filed an amicus brief in support of the court decision invalidating that provision, which was the same one invoked by PTO in denying protection to its trademarks.
In that brief, the team owners asked that the Supreme Court hear those cases together.
The court has decided to hear the Obama Administration appeal but not to add the Washington Redskins case, which remains in the Fourth Circuit.
But obviously the decision in the band's case has direct relevance.
The team appealed the PTO decision back in January, also arguing that the decision was unconstitutional.
The team appealed to the Fourth Circuit after a district court's summary judgment upholding the PTO decision.
In its opening brief, the team said the district court erred in granting summary judgment and that the PTO's cancellation violated the First and Fifth Amendments.
"Cancelling a registration based on the government’s disapproval of a trademark discriminates against speech based on content and viewpoint," they said. "The District Court nonetheless declared the PTO’s action exempt from any First Amendment scrutiny because registered trademarks are all 'government speech' and registration is a government subsidy 'program.'"
The team called it an "astounding" notion that two million government-registered trademarks would be considered government speech.
It pointed out that the PTO had registered, and not invalidated, hundreds, perhaps thousands, trademarks the team thinks are racist, misogynistic, or offensive, including Take Yo Panties Off clothing, Dumb Blonde beer, Dago Swagg clothing, and Thug Porn.
The PTO cancellation does not mean the Washington Redskins can't use the mark—which is abundantly clear from the wealth of team merchandise—but it does mean the feds will not protect it from infringement and knock-offs, a point the team made to the court.