At issue with the law is the problem defining the word “disparage,” which Merriam-Webster defines as, “to lower in rank or reputation.” When Slant’s name was blocked from trademarking by the US Patent and Trademark Office on occasion of its being disparaging to Asians, the band appealed. Slant band members, who are Asian-American, claimed they were using the term “slant” as a way to honor themselves and fellow Asians –reclaiming a negative connotation for a positive one. So, too, do Redskins-brand name supporters claim: The football team name is meant to behold and honor lauded qualities of this group of Native Americans which a football team seeks to emulate. One of their fan sites, Redskinsfacts.com states: “We believe the Redskins name deserves to stay. It epitomizes all the noble qualities we admire about Native Americans—the same intangibles we expect from Washington’s gridiron heroes on game day. Honor. Loyalty. Unity. Respect. Courage.”
The discretion for interpreting the word “disparage” therefore rests in a court’s hands, and a recent case brought the question to the fore, uniting both The Slants and the Redskins. Interestingly, these were unlikely bedfellows because the former deems the latter’s name as an insult to Native Americans. Yet, they had a mutually beneficial reason for uniting on the legal front: They both believe that the 1st amendment should supersede the government’s say in a brand name.
To be sure, the law only applies to Trademark Office’s refusal to issue a trademark – it does not outlaw the name itself. However, if a business cannot trademark its products due to its name, it risks losing money to counterfeit copycats and therefore ipso facto is incentivized to change its name to something trademarkable. The question is whether the Trademark Office, a governmental body, should be allowed to penalize businesses for something which might be a free-speech right.
Both the Redskins, whose case’s oral arguments are scheduled for December before the U.S. Court of Appeals for the 4th Circuit in Richmond, and The Slants, whose case is at the Supreme Court, would have liked their appeals heard at the same time - by the Supreme Court. However, this would have entailed the rare occurrence of the Supreme Court bypassing a court of appeals to take a case directly, and the Supreme Court rejected the Redskins’ appeal.
The date of the Slant’s case has not been made public. And now with Richmond’s 4th District knowing it will be impacted by the Supreme Court’s ruling, it’s likely that the December Richmond scheduling may be delayed until further notice. So, stay tuned for the Supreme Court ruling.