Federal Circuit Judge Kimberly Moore, who wrote the majority decision, quoted twice from a friend-of-the-court brief that lawyers for the Redskins filed in support of The Slants.
The Washington football team is 7-7 on the field so far this season, but it is 0-2 in the trademark fight. In July, U.S. District Judge Gerald Lee in Alexandria, Virginia, upheld a 2014 decision by a patent and trademark administrative board canceling the team’s marks. The team’s name was likely disparaging to Native Americans, Lee wrote.
The Fourth Circuit has yet to hear arguments in the Redskins’ case. Final briefs are due in February.
Lisa Blatt of Arnold & Porter and Robert Raskopf of Quinn Emanuel Urquhart & Sullivan, lead attorneys for the Redskins, did not immediately return requests for comment. Jesse Witten of Drinker Biddle & Reath, lead counsel for the group of Native Americans who challenged the Washington football team’s name, declined to comment.
The Federal Circuit’s decision was split into five parts. Eight judges joined the majority’s decision in favor of The Slants, although one of those judges wrote separately that he would limit the ruling to the band. Two judges wrote concurring opinions and two judges wrote dissenting opinions.
The majority of the court found that the section of the federal Lanham Act that blocks the U.S. Patent and Trademark Office from registering scandalous, immoral, or disparaging marks was unconstitutional under the First Amendment.
“Whatever our personal feelings about the mark at issue here, or other disparaging marks, the First Amendment forbids government regulators to deny registration because they find the speech likely to offend others,” Moore wrote.
Judge Kathleen O’Malley, in a concurring opinion joined by Judge Evan Wallach, wrote that she would also strike down the section of the Lanham Act at issue as unconstitutionally vague.
Both are arguments that the Redskins made in the opening brief they filed in the Fourth Circuit in October.
Federal Circuit Judge Timothy Dyk wrote separately that he thought the contested section of the Lanham Act was unconstitutional as applied to The Slants—the band’s name was “core political expression,” the judge said—but not unconstitutional as a whole.
Judges Alan Lourie and Jimmie Reyna each wrote dissenting opinions.
The Federal Circuit’s ruling in In re Simon Shiao Tam is posted below.
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