University of California Riverside Constitutional Law Discussion

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Asian American Rock Bands and the National Football League

Asian American Rock Band Trademarks

Mr. Tam is the founder and bassist for the Asian-American rock band The Slants (Links to an external site.) (a brief video of their music is above). Mr. Tam gave that name to his band to “reclaim” and to “take ownership” of Asian stereotypes. On March 5, 2010, Tam filed his first application to register THE SLANTS. After several appeals, the application was eventually abandoned. On November 14, 2011, Tam filed his second application (App. No. 85/472,044) seeking to register the mark THE SLANTS for “Entertainment in the nature of live performances by a musical band,” based on his use of the mark since 2006. The USPTO examiner refused to register Tam’s mark and found it likely disparaging to “persons of Asian descent” under § 2(a) of the Lanham Act (the Lanham Act is the law setting forth the ability to protect trademarks). Section 2(a) banned federal registration of “immoral” or “scandalous” marks. A disparaging mark is a mark that “dishonors by comparison with what is inferior, slights, deprecates, degrades, or affects or injures by unjust comparison.” The USPTO examiner found that the mark likely referred to people of Asian descent in a disparaging way and explained that the term “slants” had “a long history of being used to deride and mock a physical feature” of people of Asian descent. The examiner found that a substantial composite of persons of Asian descent might find the term offensive precisely because it was being used by an Asian American band: “Here, the evidence is uncontested that applicant is a founding member of a band that is self described as being composed of members of Asian descent…. Thus, the association of the term SLANTS with those of Asian descent is evidenced by how the applicant uses the work – as the name of an all Asian-American band.”

THE SLANTS Procedural History

Mr. Tam appealed the USPTO’s denial to the Federal Circuit which determined that Section 2(a) of the Lanham Act was unconstitutional and is ruled that Mr. Tam was entitled to trademark registration. In turn, the USPTO appealed the case to the United States Supreme Court, which agreed to hear the case.

The issue on appeal before the Supreme Court was “whether the disparagement provision in Section 2(a) is facially invalid under the Free Speech Clause of the First Amendment.” (Links to an external site.)The Supreme Court delivered final judgment in favor of Tam by voting unanimously to affirm the Court of Appeals. The majority opinion stated, “The disparagement clause violates the First Amendment’s Free Speech Clause. Contrary to the Government’s contention, trademarks are private, not government speech.” (Links to an external site.)

The Court ruled that the government cannot ban expression merely because it is offensive. In the majority opinion, Justice Alito wrote “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express”the thought that we hate.”

The Washington Football Team

Pivoting away for a moment, at about the same time that Mr. Tam was fighting for his right to register THE SLANTS, a number of Native Americans were engaging in their own legal battles with the Washington Redskins, a National Football League franchise. The plaintiffs had successfully convinced the USPTO to cancel a number of trademark registrations held by the team, including REDSKINS because they found the term to be derogatory.

Daniel Snyder, owner of the Washington Football Team (formerly the Redskins)

If you are a sports fan, then you probably know that in 2019 the Washington Redskins stopped using the name REDSKINS and starting in the 2020 season, they were known simply as the Washington Football Team (“WFT”). The owner of the WFT, Daniel Snyder (above) had previously stated that he would never stop using the REDSKINS name for the team, yet he did exactly the opposite.

The team has since adopted the name Washington Commanders, though it is not entirely clear what they command. When analyzing the facts of this situation, please remember that in this fact pattern, the team has yet to consider, much less develop alternative names.

Helmet with Redskins logo New Helmet for the Wasington Football Team

You As General Counsel

Tom Cruise at a Washington Redskins game

Tom Cruise thought so much of your legal skills at Tom Cruise Delivery Company that he helped you get your next job, working as the WFT’s General Counsel. He did this because he is a die-hard fan of the team. In fact, you still see Tom Cruise on most Sundays during the fall at football games.

Question Presented

You were in the room with WFT owner Daniel Snyder when he was evaluating whether to drop the REDSKINS name. Since you are into the rock band scene, you are keenly aware of Mr. Tam’s band and his efforts to register THE SLANTS.

Daniel Snyder wants to know if he will be successful on appeal and recover the trademark registrations, including REDSKINS. What would be your legal advice to him? Would you offer him any business advice as well? If so, what would that be and why?

Hint

This is not an opportunity to expound on why REDSKINS is derogatory. You are certainly entitled to take and state that position, but please remember this is not a course on social justice. For purposes of this assignment, I will be evaluating you on your recommendations and more importantly your business and legal reasoning.

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