In a case with special significance to our DuetsBlog crew (our founder Steve Baird started the fight to cancel the THE REDSKINS trademark registrations in 1992 – see more about the Harjo case here) and significant to trademark practitioners and owners alike, the federal government is asking the United States Supreme Court to deny the Washington Redskins’ request to skip over the appellate court and go directly to its Court to have this dispute decided.  I will refer to the Washington Redskins as the “Team,” although unlike my good friend Craig, my team will always be the Vikings.

By way of background, the highly publicized Pro-Football Inc. v. Blackhorse, No. 15-1311, case was filed by the Team to avoid cancellation of its trademark registrations for THE REDSKINS mark.  Losing at the Eastern District of Virginia, the Team wants to skip the normal path of letting the Fourth Circuit hear the dispute, and instead asked the Supreme Court to hear the case directly.  The Team relied on the following arguments for this unusual request:

  1. The Court often grants certiorari before judgment to consider companion cases together (in this case it is the Tam case involving the Slants rock band);
  2. The Team’s case is an ideal companion to Tam and essential to resolve the constitutionality of the Lanham Act’s §2(a); and
  3.  The Team is better situated to challenge §2(a)’s constitutionality (in effect our lawyers are better or more well-funded and were relied upon by the Federal Circuit).

The government asserted that there was no valid reason to allow the Team to bud to the front of the line and skip over the Fourth Circuit.  In other words, there was no “reason to deviate from the [C]ourt’s usual practice of deferring any review until the court of appeals has issued its decision.”  The government slammed the Team stating that “Petitioner’s confidence in its own attorneys’ litigation skills provides no reason to take the extraordinary step of granting certiorari before judgment.”  Plus, Tam’s attorneys are really good attorneys themselves.

Not surprisingly, the Native Americans, who won at the district level, agreed with the government and added that if the Court did grant the Team’s petition it should only do so to answer the First Amendment questions, not the other challenges that they have asserted to THE REDSKINS registrations.

This Washington Redskins case and the Tam case have widespread interest because if the Supreme Court agrees with the Federal Circuit’s decision in Tam, then the provision in the 70 year old Lanham Act preventing the registration of disparaging trademarks will be found unconstitutional as violating the First Amendment.  There are wide-reaching implications for this decision.

With the death of Justice Scalia, there are only eight Justices currently on the high Court.  If there is a split decision, then the lower court’s decision stands.   I suppose I am putting the cart before the horse as the Supreme Court has not yet granted certiorari on the Tam or the Team’s case.  However, I would be shocked if the Court does not do so.  This issue is as exciting as the Super Bowl (at least for trademark attorneys).