Article · Intellectual Property

Disparaging Marks and the First Amendment: The Washington Redskins Saga After Matal v. Tam

Type
Article
Jurisdiction
National
Date
2025-05-25
Topic
Intellectual Property

For twenty-six years the federal government tried to strip the Washington NFL franchise of its trademark registrations under the Lanham Act's disparagement bar, and for a moment it succeeded. This article reconstructs the entire arc: the Harjo and Blackhorse cancellation petitions before the Trademark Trial and Appeal Board, the Fourth Circuit litigation in Pro-Football, Inc. v. Blackhorse, and the unrelated case of an Asian-American band called The Slants that reached the Supreme Court first. It explains why Matal v. Tam, 582 U.S. 218 (2017), held the disparagement clause unconstitutional as viewpoint discrimination, how Iancu v. Brunetti, 588 U.S. 388 (2019), finished off the immoral-or-scandalous bar, and how Vidal v. Elster, 602 U.S. 286 (2024), drew the outer boundary by upholding the living-names clause. It maps which Section 2 bars survived, works through invented hypotheticals, and separates the legal victory from the market forces that actually changed the name. Written for lawyers, founders, judges, and curious readers alike.

Disparaging Marks and the First Amendment: The Washington Redskins Saga After Matal v. Tam

Intellectual Property > Trademark | Published 25 May 2025 - Updated 30 July 2025 | UpLaw - uplaw.us

The most controversial trademark in American sports was rescued from cancellation by a Portland dance-rock band that had nothing to do with football. That improbable fact is the doorway into one of the most important First Amendment principles of the last decade: the government may run a trademark registry, but it may not use that registry to punish speech for the ideas it expresses.

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