After the Supreme Court Touchdown, Washington Redskins Are Finally Winning at the Fourth Circuit and the PTO

Two incredible things happened in 1992 for the NFL football team Washington Redskins. It won the Super Bowl and applied to register a trademark Washington Redskins. It has not been so lucky ever since. It has not won another Super Bowl and has not registered that mark since 1992. Now, thanks to the touchdown scored by the Supreme Court for Washington Redskins and its compadres The Slants band of Asian-American musicians in the Matal v. Tam case last term, the team just converted its 25-year old application into a US registration and is about to get its six presently-cancelled other US trademark registrations back. This is a natural fall out from the Supreme Court’s decision to invalidate the Lanham Act’s Section 2(a) prohibition against registering “disparag[ing]” trademarks as an unconstitutional restriction on free speech. [See Mintz Levin’s prior post on the Matal decision.] This decision has now forced the hand of the Fourth Circuit to vacate and remand in an unpublished per curiam opinion the Washington Redskins’ appeal of the district court decision to uphold the PTO’s cancellation of its six trademark registrations as disparaging to Native Americans. [See Mintz Levin’s prior post on this saga.] The Supreme Court’s decision has left nothing to consider for the Fourth Circuit, the district court, and the PTO, which will now have to reinstate the presently cancelled trademark registrations.

In fact, the PTO has already started to apply the Supreme Court’s holding and is no longer rejecting the Redskins’ marks as disparaging. For example, on January 16, 2018, after what appears to be the longest trademark prosecution of more than 25 years, the PTO finally issued a registration certificate for that 1992 application for the Washington Redskins mark for apparel and paper products and publications. In a less protracted 17–year prosecution of a  trademark application for the Washington Redskins Cheerleaders mark, the PTO withdrew the disparagement rejection, but rejected this mark over NFL Properties-owned application for Boston Redskins, which itself has been pending since 1994 and also recently been “resurrected” from the netherworld of disparagement. Now, that the Washington Redskins’ marks are being restored to their former glory off the field, we only hope the team would update its 26-year old collection of three Super Bowl titles next season.

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