A federal appeals court agreed on Tuesday to delay the case involving the legality of the Washington, D.C., pro football team’s trademarks on its name, the Redskins. Those trademarks have been ordered cancelled under a law that forbids such protection for marks that are “disparaging” to someone.
The team had failed in an attempt to get the Supreme Court to hear its case in defense of its trademarks before its pending appeal could be decided by the U.S. Court of Appeals for the Fourth Circuit. However, the Supreme Court in late September agreed in another case to rule on the constitutionality of the disparagement law and then denied the Redskins’ petition for early review of the team’s own case.
A hearing before the Fourth Circuit Court panel on the Redskins case had been set for December 9. All of the legal briefs have been filed.
Lawyers for the team early this month asked the Circuit Court to postpone that hearing, arguing that the Supreme Court’s coming decision in the other case (Lee v. Tam) could have an impact on the Redskins’ case, especially if the Justices were to strike down the disparagement law under the Free Speech Clause of the First Amendment — as another federal appeals court had done in the Tam case.
It would be “inefficient and wasteful,” the team’s counsel told the Fourth Circuit Court, to have oral arguments when the Supreme Court might dispose of the underlying constitutional dispute in the Tam case. The Justice Department, representing the Patent and Trademark Office, and the five Native-Americans who had challenged the Redskins marks, did not oppose the postponement request.
On Tuesday, in a one-sentence order, the Circuit Court granted the postponement without saying anything further about future scheduling. Presumably, lawyers in the Redskins’ case will notify the Circuit Court when the Justices have decided the Tam case, and the court will proceed from there.
The Redskins’ case is considerably more complex than the Tam case, which involves only the question of whether the 1946 law’s ban on disparaging trademarks violates the First Amendment. The Patent and Trademark Office took that issue to the Supreme Court after the law was nullified under the Free Speech Clause by the U.S. Court of Appeals for the Federal Circuit.
While the Tam case involves the initial denial of a trademark application (by a rock band that sought protection for its name, the “SLANTS”), the Washington team’s case involves the cancellation of existing trademarks — in fact, some of those trademarks go back to 1967.
After the PTO’s Trademark Trial and Appeals Board — in a split decision — cancelled six marks, at the request of a group of Native Americans, that action was challenged by the team in federal District Court in Virginia. The judge in that case upheld the cancellation, ruling that the Redskins name was disparaging to “a substantial composite of Native Americans” at the time each of the marks was registered.
When the team took the case on to the Fourth Circuit, its docketing statement (found here) raised five issues:
** Whether the District Court judge was wrong in concluding that the marks were disparaging at the times they were registered.
** Whether the judge was wrong in upholding the disparagement law against a First Amendment challenge.
** Whether the judge was wrong in rejecting the team argument that it violated Fifth Amendment due process rights to cancel trademark registrations decades after they were issued.
** Whether the judge was wrong in ruling that the disparagement law was not unconstitutionally vague.
** Whether the judge was wrong in not throwing out the Native Americans’ challenge to the trademarks because they waited too long to pursue their claim.
If the Supreme Court, in the Tam case, were to uphold the disparagement law’s constitutionality, the other issues raised by the Redskins could still go forward in the Fourth Circuit Court.
(NOTE: This post also appears on Constitution Daily, the blog of the National Constitution Center in Philadelphia.)