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Blackhorse’s Last Stand?: The First Amendment Battle Against The Washington “Redskins” Trademark After Matal v. Tam

Published onAug 07, 2022
Blackhorse’s Last Stand?: The First Amendment Battle Against The Washington “Redskins” Trademark After Matal v. Tam

19 Wake Forest J. Bus. & Intell. Prop. L. 173

On September 7, 2018, the United States Patent and Trademark
Office (USPTO) reopened questions affecting the Washington
“Redskins” trademark when it filed a Supreme Court cert petition
concerning the constitutionality of the Lanham Act’s “immoral or
scandalous” clause. Previously, in 2014, Amanda Blackhorse and
several other Native Americans succeeded in getting six federal
registrations of the Washington “Redskins” trademark cancelled. The
Eastern District of Virginia agreed with Blackhorse that the term
“Redskins” was disparaging to Native Americans in violation of the
Lanham Act’s “disparagement” clause. However, after the Supreme
Court held in Matal v. Tam that the “disparagement” clause was
unconstitutional, the Fourth Circuit vacated the order of the Eastern
District of Virginia, and the trademark suit against the “Redskins” was
dropped. But now that the Supreme Court granted the USPTO’s cert
petition in In re Brunetti on January 4, 2019, the “Redskins” trademark
may again face the question of whether it violates the Lanham Act. That
is, can the “Redskins” trademark get re-cancelled, not for being
disparaging, but for being immoral or scandalous? Although the
Supreme Court has yet to answer this question, plaintiffs like
Blackhorse face the following obstacles in their battle against the
“Redskins” trademark: (1) it is unclear whether the term “Redskins”
meets the traditional definition of the words “immoral or scandalous”;
(2) the method of analyzing terms under the “immoral or scandalous”
clause comes dangerously close to committing what caused the
“disparagement” clause to get struck down in Tam; and (3) as a matter
of public policy, courts have been cautious to avoid rulings that would
upset the “marketplace of ideas” in the realm of trademarks. These
obstacles, however, might be overcome if the term is shown to be vulgar,
obscene, or shocking to the sense of truth, decency or propriety to a
substantial composite of the general population.

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