SCOTUS Declines to Hear Redskins Case, but Lawyers Are Unsurprised

On October 3, 2016 the Supreme Court declined to hear Blackhorse v. Pro Football and rejected an appeal from the Washington Redskins, a case concerning the registration of disparaging trademarks. The Supreme Court did, however, agree to hear the In re Tam case which centers around similar issues. After the justices announced their decision, the Redskins immediately asked the Supreme Court to review a decision of the U.S. District Court for the Eastern District of Virginia before a decision from the U.S. Court of Appeals for the Fourth Circuit. World Intellectual Property Review reached to Finnegan attorney B. Brett Heavner for his thoughts.

Heavner said that the Blackhorse case "was not really ripe for an appeal to the Supreme Court since the lower appeals court had not yet ruled on the Redskins case." While some of the issues in Blackhorse and In re Tam overlap, Heavner noted that the analysis may be different. In In re Tam, the band’s founder specifically chose the name "The Slants" as a social statement related to his Asian-American heritage. Heavner said, "It is possible that the Supreme Court may create a test that would require the allegedly "offensive" trademark at issue to itself function as protected political or social speech, rather than primarily commercial speech."