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Published On: June 27, 2017Categories: Intellectual Property

Redskins Likely to Regain Trademark Protection, but I Don’t Care Because I’m a Cowboys Fan

Three years ago news broke that petitioners had successfully convinced the US Patent and Trademark Office to strip the Washington Redskins of the name “Redskins” –and deny them Trademark protection–because it was offensive to many, especially Native Americans (link). Being from Dallas and being an avid Cowboys fan, I remarked then (as I do now) that the Redskins losing their name was not going to cost me a lick of sleep. BUT, I said, I didn’t think it would hold up legally. (See, e.g., Here and Here). While there had been a longstanding practice by PTAB of not allowing protection for marks that “disparaged or brought person into disrepute,” this lacked any statutory foundation in my opinion, and seemed to violate the First Amendment.

To wit, this week the Supreme Court unanimously held that an offensive term– in the case before it, the “Slants” as a name for a band–can be Trademarked, and that the USPTO’s denial of the Trademark (assuming it meets all other requirements for Trademark protection) was unlawful.  The Trademark was being sought by an Asian-American rock band who call themselves “The Slants.” Band leader Simon Tam said they wanted “to take on stereotypes that people have about us, like the slanted eyes, and own them.” The SCOTUS could have ruled more narrowly that certain epithets claimed by the victim class were not “offensive” and thus, open to Trademark protection, but the Court went beyond that to issue a categorical ruling. Click to read the Court opinion in Matal v. Tam.

Back to the dreaded Redskins. Congratulations, I think(?). May you regain your USPTA protection and lose every game from now till eternity.