We have been following the course of In re Tam as it has progressed through the PTO and the courts. See our prior posts here, here, here, here and here. To recap, at issue is whether Section 2(a) of the Lanham Act, which prohibits the registration of marks that may disparage persons, institutions, beliefs, or national symbols, violates the First Amendment as a viewpoint-based restriction on speech. The Federal Circuit, overruling its own long-standing precedent, concluded that the provision did violate the First Amendment, and it struck down the provision. Since the decision of the Federal Circuit, the Trademark Office has suspended applications that may run afoul of Section 2(a) rather the refusing registration outright while it sought Supreme Court review.
This week, the Supreme Court granted the government’s petition for a writ of certiorari. Merits briefing likely will take place toward the end of the year with arguments likely held in the Spring.
While taking the In re Tam case, a few days later the Court declined to take Blackhorse v. Pro-Football, Inc., another case challenging Section 2(a), filed by the holders of the Washington Redskins trademarks. Pro-Football had sought expedited Supreme Court review of its case, which is pending before the Fourth Circuit, in order to argue its issues alongside the litigants in In re Tam. This Supreme Court’s refusal to provide this expedited review is not surprising. Obtaining Supreme Court review is always a long shot, and especially so given the procedural posture of the Blackhorse case. The Blackhorse case raises issues beyond those presented in In re Tam, and it also had not yet been heard by the Fourth Circuit. Pro-Football likely saw jumping into the In re Tam fray as its best chance to have its appeal heard by the Court. But like my beloved Jets, it is just another losing Monday for the football folks.