Slants Route May Help Redskins

[Commentary] In 2014, some folks filed petitions to deny at the Federal Communications Commission objecting to a renewal application for a radio station that happened to be owned by a company controlled by Daniel Snyder, the Washington Redskin’s owner. In the petitioners’ view, the team name “Redskins” is so offensive that it warrants denial of license renewal. Ouch. The FCC had the good judgment to reject the petitions. But the name debate has raged on elsewhere, most notably in the Patent and Trademark Office (PTO), where a number of Native Americans have been waging a years-long battle to have the registration of the mark “Redskins” cancelled because it’s disparaging to, um, Native Americans. Most recently, they made considerable headway: in 2014 the Trademark Trial and Appeal Board ruled that the mark is indeed disparaging, and it cancelled the mark’s registration, a move that threatens the team’s exclusive right to use the name and certain associated trademarks). Which brings us to the Slants.

The Slants are an all-Asian, “ChinatownDanceRock” band formed in 2006 and fronted by Simon Shiao Tam. In 2010, Tam decided it was time to register the band’s name as a trademark. As it happens, though, federal trademark law expressly permits rejection of a proposed registration if the mark “disparages” people (as well as institutions, beliefs or national symbols). Tam’s first application was rejected by the PTO Trademark Examiner, who concluded that the name “Slants” disparages people of Asian descent, even though Tam pointed out that he and his band are themselves Asians. Tam re-filed his application in 2011. The Examiner again concluded that the mark is disparaging. On review, the Trademark Trial and Appeal Board agreed. That conclusion is important for Dan Snyder because, but for that “disparagement” provision, there probably wouldn’t be any basis for challenging the “Redskins” trademark. The “Redskins” case is pending in the Eastern District of Virginia (and presumably heading from there to the Fourth Circuit, rather than the Federal Circuit). Should the PTO’s Slants decision get overturned by the en banc Federal Circuit -- with the “disparagement” provision getting tossed as unconstitutional -- the District Court (even one in a different Circuit) could be convinced to follow suit in the Redskins case. In any event, even though Dan Snyder has not (as far as we know) been involved in any way with Tam and the Slants, his prospects for success on the trademark front are suddenly looking a lot rosier.