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Redskins Get Good News in Trademark Battle

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Some news out of the Federal Circuit Court of Appeals may bode well for the Redskins in their trademark case.

Geoff Burke-USA TODAY Sports

The Federal Circuit Court of Appeals ruled portions of the Lanham Act unconstitutional on Tuesday, specifically striking down the trademark-related provision that allows the government to refuse to grant (or to cancel) "disparaging" marks.

If that sounds familiar, it's because this is the same piece of the law used to cancel the Washington Redskins trademarks.

The case before the Federal Circuit, In Re Simon Shiao Tam, dealt with a band known as the "Slants."  As "Slants" is also a potentially disparaging word referring to people of Asian descent (a word chosen intentionally by Tam, who is Asian-American), the USPTO ruled that the mark would not be given protection.

In its opinion today, the Federal Circuit held, in part:

The government cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks. It cannot refuse to register marks because it concludes that such marks will be disparaging to others. The government regulation at issue amounts to viewpoint discrimination, and under the strict scrutiny review appropriate for government regulation of message or viewpoint, we conclude that the disparagement proscription of § 2(a) is unconstitutional.

You'll note that the argument accepted by the court here is nearly identical to one that I discussed two months ago---one put forth by the Redskins in their Fourth Circuit brief.  Section 2(a) is the provision the Redskins seek to attack on First Amendment / free speech grounds.

It's important to note the significance of the distinction among the circuits.  The circuits are "peers," so to speak.  A precedential ruling by one circuit court, as here, may, of course, be cited by another circuit.  However, that precedent is not binding.  It is potentially persuasive authority, but not more.

That means that there is technically no guarantee that the Fourth Circuit will use the same reasoning in its case that the Federal Circuit did in today's decision.

That being said, today's ruling makes it much more likely that the Fourth Circuit will follow suit.  It also helps the Redskins in another way, even if they happen to lose: If the Fourth Circuit rejects the Redskins' First Amendment argument, that will create what's called a "circuit split," or a difference of opinion among various circuits about what the law requires.

Resolving circuit splits is often a priority for the Supreme Court of the United States, which would make a hypothetical appeal to the SCotUS by the Redskins more likely to be heard in the event that they lose at the circuit level.

Another good sign for the Redskins is that the majority in the Tam decision was lopsided and included appointees by both Republican and Democratic presidents.  The majority today included Judge Moore (appointed by George W. Bush), Chief Judge Prost (G. W. Bush), Judge Newman (Reagan), Judge O'Malley (Obama), Judge Wallach (Obama), Judge Taranto (Obama), Judge Chen (Obama), Judge Hughes (Obama), and Judge Stoll (Obama).  Judge Dyk (Clinton) wrote an opinion concurring in part and dissenting in part, which Judges Lourie (G. H. W. Bush) and Reyna (Obama) also joined.  The latter two judges wrote separate dissenting opinions as well.

The bottom line?  This case wasn't even close, and the party of the president who appointed a given judge had no impact on the ultimate decision.  All of that is great news for the Redskins.

To be clear: The Redskins haven't won anything yet, despite some errant tweets you may have seen from pro- and anti-Redskins folks alike.  But today's ruling could be a fairly reliable roadmap for how the Fourth Circuit proceeds.