The Fourth Circuit Court of Appeals has postponed oral argument in the Redskins disparagement trademark case (Pro-Football Inc. v Amanda Blackhorse, No. 15-874). All briefing on the issues had been completed and the case was set for oral argument on December 9, 2016. However, at the request of the Redskins, the Fourth Circuit has agreed to postpone the case until the Supreme Court issues its decision in Lee v. Tam.
In Lee v. Tam, the Supreme Court will determine whether the disparagement provision of the Lanham Act, which provides that no trademark shall be refused registration on account of its nature unless, inter alia, it “[c]onsists of . . . matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” is facially invalid under the Free Speech Clause of the First Amendment. The Redskins attempted to have the Supreme Court consolidate their case for review with Lee v. Tam, but SCOTUS denied their petition for certiorari.
Though the underlying constitutional issues are the same in the two cases, the Redskins had six of their marks retroactively cancelled while The SLANTS mark was denied registration from the outset. Because of the retroactive cancellation, the Redskins’ case also raises the issue of whether the team’s due process rights were violated by the cancellation of marks years after the initial registration with the USPTO. A decision in Lee v. Tam is not expected until next year.