SCOTUS to rule on “offensive” trademarks

For years now there’s been a popular movement gaining furor just beneath the headlines.

Occasionally, like a dormant volcano, the topic explodes across the headlines, then dissipates back to a lower buzz beneath all the rage over other things. Finally, though, the issue of so-called “offensive” trademarks will see its day in the Supreme Court.

SCOTUS is hearing a case that could impact the Washington Redskins’ refusal to change their mascot and the U.S. Government’s refusal to force them to do so.

According to the Associated Press the case involves the Asian-American rock band called “The Slants” … a compromise for the Court that refused to hear the similar, but higher profile, Redskins case.

The decision is an indication of how politics and PR plays a definitive role in the choices the Court makes in which cases to take and which to reject. While the Slants case is not the Redskins, it will play a role in determining the outcome of that contentious and much higher profile argument.
It’s not a direct correlation, but there are some similarities…

Back in 2011, The Slants filed a trademark requests for the name, which was subsequently rejected by the U.S. Patent and Trademark Office on the grounds that it disparages Asians. The band immediately sued, and a federal appeals court agreed with The Slants that the law barring offensive trademarks violates free speech.

And that’s where the ‘Skins hope to profit. The differences in the case are definite. The Redskins have been around for decades, while The Slants just applied for a trademark. It would be a lot tougher to allow the refusal of a trademark than to remove a trademark that’s been allowed and beloved for decades.

Despite that, it’s exactly what happened. The trademark office removed the team’s trademarks last year after determining them to be disparaging to Native Americans. The Redskins disputed the case in court, and there was hope in that camp that SCOTUS would hear both cases at the same time.
But that wasn’t to be. The Redskins case is still in the early going. Hasn’t even made it up to the state appeals level. Hence the dismissal from SCOTUS. The Supremes rarely grant requests to leapfrog lower courts.

But, regardless of the court’s decisions at any level, this issue will likely be won or lost on the PR playing field. Opinions are split on the issue at this point, but the tide may be turning.

Elie Hirschfeld is a seasoned real estate developer in NYC.