Washington Redskins file for conditional Supreme Court hearing

The Washington Redskins football team wants a chance to appear in the Super Bowl of the federal judiciary system if things don’t go their way in the legal dispute over its trademark.

In July 2015, a federal district judge ruled against the Redskins in the trademark dispute over their controversial nickname.  Judge Gerald Bruce Lee said the United States Patent and Trademark Office had the ability to cancel the federal registration of six Washington team trademarks because the moniker was “disparaging of Native Americans.”

The Redskins’ opponents hoped losing the federal trademark protections would put financial pressure on the NFL team to change its name, by making it difficult to control the use of logos for commercial use. Lee added that his decision didn’t bar the Washington team from using the Redskins’ marks in commerce or prevent fans from wearing or displaying Redskins symbols.

That decision from United District Court for the Eastern District of Virginia is now at a federal appeals court. But the Redskins, arguing as Pro-Football Inc., want their case consolidated with a second case called Lee v. Tam, if the high court accepts that second case.

On April 20, the federal government asked the Supreme Court to takeLee v. Tam, which involves trademark protection for an Asian-American rock band’s name that in theory disparages other Asian Americans.

The U.S. Court of Appeals for the Federal Circuit found in Lee v. Tam that a lower court ruling that barred the band from trademarking the name "The Slants" was invalid under the First Amendment because the decision imposed impermissible content-based and viewpoint-discriminatory burdens on protected speech.  (The ruling didn’t immediately affect the Redskins decision, which is in the Fourth Circuit.)

Solicitor General Donald Verrilli wants the Supreme Court to overturn the Lee v. Tam’s ruling that Section 2(a) of the Lanham Act is facially unconstitutional. The Lanham Act empowers the Patent Office to deny marks that “disparage, bring into contempt or disrepute persons, institutions, beliefs, or national symbols.” The government argues the lower court’s ruling effectively invalidates an act of Congress, which is really a matter for the Supreme Court to consider, and that the Supreme Court should decide if the Lanham Act’s disparagement provision in valid under the First Amendment’s free speech clause.

The lawyers for the Redskins, aka Pro Football Inc., feel the Supreme Court could do a better job if it added their case to the Lee v. Tam case -- if the Court accepts Lee v. Tam. To be sure, they believe that the Lee v. Tam case was correctly decided and the Supreme Court shouldn’t accept it. But if four Justices agree with Solicitor General Verrilli and the Court accepts the case, Pro Football Inc. wants its appeal to bypass the Fourth Circuit and to be consolidated with the Lee v. Tam case.

“This case would allow the Court to consider Tam’s First Amendment question in the full range of circumstances, including both initial denials of registration and after the-fact cancellations,” Pro Football Inc. says. “The cancellation context here not only rounds out the scenarios in which § 2(a) applies, but also poses the gravest threat to free speech and is by far the most constitutionally suspect.