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McMullen | SCOTUS aids Redskins in name fight

30.10.2016. Wembley Stadium, London, England. NFL International Series. Cincinnati Bengals versus Washington Redskins. A Redskins helmet. Final score: Washington Redskins 27-27 Cincinnati Bengals after overtime. (Photo by John Kirkpatrick/Actionplus/Icon Sportswire)
John Kirkpatrick/Actionplus/Icon Sportswire

You might find the nickname of the Washington Redskins offensive but you can’t get rid of it through back-channel means.

That’s essentially what the Supreme Court of the United States ruled on Monday when it struck down part of a law that prohibits “offensive trademarks.”

The justices ruled that a 71-year-old trademark law that barred terms viewed as disparaging and has been used as an inconsistent political tool over the years infringes on free speech rights.

The actual mechanics of the case had nothing to do with the Beltway’s football team but everything to do with an Obama administration decision to cancel the organization’s trademark.

The actual ruling was a victory for an Asian-American rock band called The Slants, which filed a trademark for the band name in 2011 before the U.S. Patent and Trademark Office denied the request on the grounds that it disparages Asians.

A federal appeals court in Washington later ruled the law barring offensive trademarks was unconstitutional and things eventually meandered all the way to the Supreme Court.

The Redskins, of course, were in a similar position when the government essentially took away the team’s trademark in 2014, citing that it was offensive to Native Americans. One key difference is that the team actually held the trademark for years, unlike The Slants.

The ‘Skins also had been going through the appeals process and a federal appeals court in Richmond put the team’s case on hold to wait for the SCOTUS decision in The Slants case.

Technically, the appeals court can still rule in favor of the U.S. Patent and Trademark Office in the Redskins matter but it ultimately would be staving off the inevitable as this ruling clearly defines that the franchise can possess the trademark even if certain individuals find it untoward.

In his opinion for the court, Justice Samuel Alito, a George W. Bush appointee, rejected arguments from the losing side that claimed trademarks are government speech, not private speech. You can hardly paint the decision as partisan, however, because it was a unanimous 8-0 laugher.

The leader of The Slants, Simon Tam, countered that he and his bandmates wanted to turn a derisive term on its head and make it a statement of pride, something the Redskins also have argued over the years.

The fact that Tam is Asian-American and was not on board with the Redskins’ amicus brief supporting The Slants will be seized on by those fighting against team majority owner Daniel Snyder, but that had no bearing on the decision either way.

Alito and the court essentially validated that trademarks like The Slants are not outside the realm of First Amendment protection as part of a government program or subsidy.

“The disparagement clause violates the First Amendment’s Free Speech Clause,” Justice Alito explained in his written opinion. “Contrary to the Government’s contention, trademarks are private, not government speech.”

From a legal perspective, you can dislike the court all you like but this was a no-brainer. You simply can’t paint The Slants or the Redskins as an entity of the government outside of the legislation that forces anyone who wants to do business to trademark its intellectual property with said government.

The stronger part of the legal argument for those looking to ban trademarks they deem offensive was the claim that The Slants, and by proxy the Redskins, weren’t being infringed upon because the band was still able to use the name, just absent trademark protection.

To many, however, the refusal to rubber stamp the Redskins’ trademark was a veiled attempt to open the floodgates for counterfeit merchandise, something the team would have no legal recourse to fight against because the organization would have no rights to the trademark.

If such a scenario was allowed to occur, in theory, Snyder would have to change the name to protect the brand.

From here, those who find the Redskins name offensive can continue to fight it by more conventional means and by convincing enough people to force Snyder to rethink his position.

The back door and an attempt to solve a morality problem using a legal loophole has been slammed shut, however.

John McMullen is a national football columnist for FanRagSports.com. You can reach him at jmcmullen44@gmail.com or on Twitter @JFMcMullen

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