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In Case Implicating Team Nicknames, Justices to Weigh Disparaging Trademarks

The U.S. Supreme Court took up an appeal about whether disparaging names can be trademarked, in a case that could influence in the long-running debate about Indian names and mascots for high school teams.

The justices on Thursday agreed to decide whether a provision of the main federal law that bars the issuance of a trademark on a name or image that disparages living or dead persons, institutions, beliefs, or national symbols.

The case of Lee v. Tam (No. 15-1293) was initiated by Simon Tam, the Asian-American leader of an Oregon-based rock band called "The Slants." Tam and the band have sought to reappropriate a traditional slur against Asians and Asian-Americans.

In 2011, Tam sought to trademark the band's name, but federal trademark officials rejected the application on the grounds of disparagement. The full U.S. Court of Appeals for the Federal Circuit, a bench in Washington that handles most patent and trademark matters, reinstated Tam's case last year, reasoning that the disparagement clause of trademark law runs counter to the First Amendment's guarantee of free speech.

Writing in partial dissent, Judge Timothy B. Dyk of the Federal Circuit court said, "There is significant social science evidence demonstrating the harmful psychological effects of holding a minority group up for ridicule on a national stage, particularly on children and young adults."

He cited a 2011 resolution by the American Psychological Association that called for the immediate retirement of American Indian mascots and team names by schools and colleges.

President Obama's administration appealed the decision, with Tam also urging the justices to take up the case. 

The National Football League's Washington Redskins, which saw six of its trademarks canceled by the U.S. Patent and Trademark Office in 2014 based on the argument that they disparaged Native Americans when they were registered from 1967 to 1990, has also asked the Supreme Court to take up its case.

"The team has used the Redskins name since 1933 and has relied on the protections that federal registration affords since 1967, when the PTO first registered the Redskins marks," the team said in its appeal in Pro-Football Inc. v. Blackhorse (No. 15-1311). "The team has invested tens of millions of dollars building its brand around the name. Losing the protections attendant to registration would be immensely burdensome and costly to the team, because it has built up enormous goodwill in its name and brand."

The justices did not act on the team's appeal on Thursday. Some legal experts noted that the team appealed to the high court even before a lower federal appeals court had ruled on its case. And they suggested the justices may wish to deal with the issue of disparaging trademarks in a less-fraught context than that involving a sports team that often dominates discussion in the Washington area.

A brief filed on behalf of the five Native Americans who challenged the Redskins' trademarks says that the University of Utah was the first school or collegiate team with a Redskins nickname to drop it, in 1972. 

"Eleven high school districts dropped 'Redskins' in the 1990s, and another 18 have done so since 2000," the brief says.

In fact, it is probably more, based on coverage of the issue by Bryan Toporek in Education Week's School in Sports blog. And California passed a law last year that prohibits the state's public schools from using "Redskins" as a team name or mascot.

Arguments in the Tam case are likely to come early next year.

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