Redskins granted trademark after Supreme Court ruling
WASHINGTON, D.C. – “Hail to the Redskins!” owner Dan Snyder exclaimed after the unanimous Supreme Court ruling on disparaging trademarks was published. The Skins have been under intense scrutiny since the ‘60s with regard to their nickname, which many have argued is disparaging toward Native Americans. In 2015 the Redskins lost a key federal court battle in which a federal judge ruled to cancel the NFL franchises’ trademark registration on the basis of it being disparaging. With that ruling, the team was no longer able to pursue claims of trademark infringement against anyone who would choose to use the team’s logo to turn a profit. However, the court’s ruling yesterday in Matal v. Tam has changed that. A major concern is that names that promote racial discrimination may send a signal that America condones such racial disparagement.
“The Slants” an Asian American rock group that attempted to register their name had their application denied and filed suit back in December of 2015. A lower federal court ruled in their favor, and on appeal the Supreme Court affirmed the lower Court’s decision. The decision was penned by Samuel Alito, a notable conservative Judge of the Court.
In many ways, the Court’s ruling has alleviated the often inconsistent decisions on what makes a trademark disparaging. For instance, the group N.W.A. –a/k/a Niggas Wit Attitudes- were allowed to trademark their group name, but Damon Wayans’ trademark application for his clothing brand “Nigga” was denied. Alito notes that the vagueness of the disparagement test and the huge volume of applications has produced “haphazard record of enforcement.”
Some have argued that by accepting the application and granting a trademark the government has adopted the viewpoint of the speaker. Alito ridicules that notion, stating that if trademarks represents government speech, then what does the government mean when it trademarked Sony’s “make.believe” or Apple’s “Think different?” He focuses on trademarks as commercial speech, illustrating that trademarks often have expressive content. Alito makes clear that companies spend huge amounts of money to create and publicize trademarks to convey a certain message. Alito goes on to analyze the Lanham Act’s disparagement clause, stating it is far too broad and may interfere with individuals who might want to register “Down with racists” and “Down with sexists.” Alito is weary of cleansing commercial speech of any expression likely to cause offense. He notes that the commercial market is well stocked with merchandise that disparages prominent figures and groups and the line between commercial and non-commercial speech is often blurred; thus if affixing a commercial label permits the suppression of any speech that may lead to political or social volatility, then free speech itself would be endangered.
Discrimination is pervasive in American culture. The American experiment will only thrive if we are allowed to express certain unpopular opinions in public discourse. However, work is not public discourse in the same disparaging remarks that may be allowed on the companies banner are not allowed within the companies normal course of business if the remarks are designed to intimidate and cultivate fear and hostile work environment.
If you feel you have been the victim of workplace discrimination or sexual harassment in New York City, Miami, New Jersey or Philadelphia or if your employment rights have been violated, call us at 800-807-2209 for a free consultation to discuss your possible claim. Our attorneys are available to review your claims and prepare a solid case to recover the damages and justice you deserved.