UPDATED Wednesday April 27 5:10 p.m.   The Washington team’s petition has now been docketed as 15-1311.

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Lawyers for the professional football team in Washington, D.C., seeking to salvage the owners’ legal right to the exclusive use of the team name “Redskins,” asked the Supreme Court on Monday afternoon to hear that case before a lower court rules on it, if the Justices also take on a new trademark appeal by the federal government.

The new case is Pro Football, Inc., v. Blackhorse.  It was filed five days after the government filed its petition in Lee v. Tam (docket 15-1293).  Both deal with the constitutionality of a part of federal trademark law that denies the exclusive right to use words or a symbol if they would “disparage” any living or dead individual, institution, belief, or national symbol.  That provision was struck down last December in a case involving a rock music band’s request to register a trademark, “THE SLANTS.”  The request was turned down as a racist reference to people of Asian ancestry.

The federal Patent and Trademark Office turned down the rock band’s application and, earlier, it cancelled the Washington football team’s several “Redskins” marks. The U.S. Court of Appeals for the Federal Circuit, in the Tam case, found that the disparagement provision was unconstitutionally vague.  While a federal judge in Virginia agreed with the cancellation of the “Redskins” marks, the team has an appeal in that case pending in the U.S. Court of Appeals for the Fourth Circuit.  It is ready for oral argument there after briefing was completed.

The team’s new petition for review by the Justices ahead of any ruling by the Fourth Circuit noted that the government petition in the Tam case raised the single question of whether the disparagement clause is unconstitutionally vague.  The Pro Football, Inc., petition said that the team agreed with the Federal Circuit’s ruling in the Tam case.

While the Washington team’s filing argued that the Federal Circuit ruling should not be reviewed by the Justices, it added that review of the disparagement clause should only occur after the Fourth Circuit rules on the “Redskins” marks.  But, if the Court were to step in and grant the government plea in the Tam dispute, the Pro Football petition said, it should also take on the Washington case at the same time.   That petition also raises the constitutional issue over vagueness in the clause in dispute, but asks whether the provision violates free-speech rights under the First Amendment and whether the government’s long delay between approving the “Redskins” marks and their cancellation under the clause violated the constitutional right to due process.

(The Court has not yet docketed the Pro Football petition, so a docket number has not yet been assigned.)

Posted in Cases in the Pipeline, Featured

Recommended Citation: Lyle Denniston, “Redskins” name defense reaches Court (UPDATED), SCOTUSblog (Apr. 25, 2016, 6:59 PM), http://www.scotusblog.com/2016/04/redskins-name-defense-reaches-court/