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United States Supreme Court Strikes Down Trademark Ban

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The U.S. Supreme Court ruled Monday that the federal government’s ban on offensive trademark registrations violates the First Amendment, handing the Washington Redskins a final victory in a decades-long battle over the team’s name.

The high court’s decision, in which all eight participating justices agreed on the key finding, came in a separate case filed by a rock band called The Slants, which challenged the constitutionality of the ban after it was refused a trademark registration on its name on the grounds that it was “disparaging” to people of Asian descent.

But the biggest impact will be on the Redskins, which saw the registrations on their billion-dollar intellectual property revoked in 2014 under the same rule. The ruling will end a two-decade effort by Native American activists to cancel the team’s registrations as pressure to change the name.

In a 39-page opinion that came with several concurrences, Justice Samuel Alito wrote that the rule — the so-called disparagement clause of Lanham Act’s Section 2a — amounted to discrimination based on unpopular speech.

The disparagement clause has been on the books since 1946 when the Lanham Act was enacted. Courts had long ruled that it didn’t violate the First Amendment because it doesn’t actually bar the real-life use of the offending mark, nor does it prevent the owner from enforcing common law trademark rights.

But the Federal Circuit, ruling on the Slants’ case in December 2015, overturned that precedent, declaring that the rule penalized unpopular speech by denying the substantial benefits of a trademark registration.

The United States Patent and Trademark Office appealed that ruling to the high court in April, and the justices granted certiorari in September.

The team has its own separate case challenging the ban, but it chose a more procedurally lengthy appellate route than the Slants, meaning the band’s case reached the high court first. The Redskins case has been stayed pending the high court’s ruling.

The USPTO is represented by its own attorneys and attorneys from the U.S. Department of Justice.

The band is represented by John Connell, Ronald D. Coleman and Joel G. MacMull of Archer & Greiner PC; and by Stuart Banner and Eugene Volokh of the UCLA School of Law.

The case is Lee v. Tam, case number 15-1293, in the Supreme Court of the United States.

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