Lee v. Tam / Pro Football, Inc. v. Blackhorse

Posted: May 10, 2016 by beguide in case summaries, Equal Protection, Free Speech, Government Action, Governmental Agencies, Intellectual Property, Moral High Ground, Opinion Breakdown, Uncategorized

WHAT HAPPENED:  The U.S. Patent and Trademark Office has a rule that prohibits trademarking any name that “disparages” any living or dead individual, belief or national symbol.  Two such entities that have had their trademarks rescinded by Federal Circuit Courts include THE SLANTS (the rock band shown above) and the WASHINGTON REDSKINS (image not shown as it is too offensive).

WHY IS THIS BEFORE ANY COURT:  The argument goes that the PTO’s denial of trademark protection violates the First Amendment.  For the Slants, their use of the term represents reclaiming offensive terminology.  For the Redskins, their use of the term represents sticking with racist words because it costs too much to change it.

WHAT WAS THE RULING:  The Slants won, and the Redskins lost.  The Redskins have now petitioned the Supreme Court to get priority review of their claim since they lost at the lower level.

WHAT ARE THE RAMIFICATIONS:  At the heart of it, the concern in this case is whether you can get priority use of an offensive term.  If that applies to you, you probably stink.

WILL THIS GO BEFORE THE SUPREME COURT:  More likely than not this will have some life at the Supreme Court next term.  There is a split in jurisdictions in regard to whether this rule is Constitutional or not, so that needs some clarity.  One interesting issue would be whether or not the Court makes a factual distinction between these two cases, or makes a rule that applies to all similar situations across the board.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s