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One of the most famous plays in American football is that known as the “Hail Mary.” This is a desperate solution in an extremely difficult situation, in which a long pass is thrown across the entire field in the improbable case that a receiver may catch it and score an epic touchdown. Currently, one of the oldest and most legendary NFL franchises, the Washington Redskins, is in a critical situation in relation its brand name, the Redskins, as they are popularly known.

In fact, as discussed in previous entries, the United States Patent and Trademark Office has decided to cancel the Redskins trademarks because it considered them offensive to Native Americans. Challenging this decision, the franchise launched a legal battle that may soon take a final turn when the Supreme Court of the United States resolves a similar case.

Last January 18, a hearing took place before the Supreme Court regarding the denied trademark registration by a rock band of the name “Slants,” a derogatory term against Asian Americans, which the US Patent and Trademark Office has considered “scandalous, immoral, and disparaging.” “The Slants” defended their right to register the trademark based on their freedom of expression protected by the Constitution of the United States.

This proceeding basically argues whether the US Patent and Trademark Office can deny trademark registration for reasons outside the scope of the objective registration requirements, including moral considerations. The Department of Justice attorney replied to the rock band’s arguments by defending that the principle of freedom of expression was not being infringed at all, since the band could continue to use that name, although not as a registered trademark.

However, the “Slants” trademark case generated a hot debate in court and among the judges. Some of them supported banning registration of any trademarks that may be considered disparaging or offensive, as allowing it would be opening a door to registering trademarks that can insulting to religion or race (among others), and that may distract consumers and harm business. In contrast, other judges argued that registration of these trademarks cannot be banned because the holder uses them to express a particular opinion or viewpoint to the market.

A clear result of the Supreme Court’s decision is not yet in sight; it is expected for June. What is indeed clear is that the Court’s decision will have important effects on the Washington Redskins’ case, whose appeal is currently suspended awaiting this decision.

Authors: Blanca Puig and Albert Agustinoy

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