April 29, 2016

Monday Night Football

Last Monday, Pro-Football, Inc. petitioned the U.S. Supreme Court to hear its case (Pro- Football, Inc. v. Blackhorse) before the Fourth Circuit Court of Appeals rules on it, but only if the Supreme Court grants certiorari in Lee v. Tam. Asking the Supreme Court to take a case before the Circuit Court of Appeals renders its decision is really rare. Almost as rare as my having anything to say about sports. Which should soon be obvious, if you keep reading.

As a reminder, here's the line-up: Pending before the U.S. Court of Appeals for the Fourth Circuit is Pro-Football's appeal from a district court decision affirming the TTAB's decision to cancel Pro-Football's registrations for various marks that include the term "Redskins" on the ground that such term violates the anti-disparagement clause (Section 2(a)) of the Lanham Act. Pro-Football's case has been fully briefed and the parties had been waiting for the Fourth Circuit Court of Appeals to schedule oral argument.

[caption id="attachment_6017" align="alignleft" width="148"]

Any Name
Ms. Blackhorse et al believe this would be preferable to the current team name.[/caption]

Meanwhile, last week in Lee v. Tam the director of the U.S. Patent and Trademark Office asked the Supreme Court to grant certiorari to review the Federal Circuit's en banc decision invalidating the anti-disparagement clause of the Lanham Act on constitutional grounds, vacating the TTAB's affirmance of the examining attorney's refusal to register the mark "The Slants" (because it violated Section 2(a)), and remanding the case to the TTAB. Pro-Football filed its petition for certiorari less than a week after the director of the PTO filed the petition in Lee v. Tam.

It is rare for a party to leapfrog a court to seek review at the highest level, but occasionally one goes directly from high school to the big leagues. Pro-Football explains why its case should be heard as a companion to Tam, and in doing so it scores some good points. But it does such a good job, the Court may be disinclined to deny certiorari to Tam.

[caption id="attachment_6018" align="alignright" width="215"]

Michelle Lee
Michelle Lee: PTO Director[/caption]

Allowing Pro Football's case to be heard as a companion to Lee v Tam would provide the Court with an expanded view of how and when Section 2(a) may be applied. While Tam encountered it during the application process, Pro- Football has encountered it during cancellation proceedings commenced years following registration. Moreover, Pro Football makes some arguments in support of its case that Tam did not (such as vagueness and due process arguments) and Pro-Football has preserved certain positions that Tam conceded (such as the nature of the speech at issue). Additionally, Pro-Football proposes a construction of Section 2(a) that would allow the Court to avoid a constitutional issue.

But in some respects, it seems Pro-Football simply cannot stand to be sidelined, watching someone else when it has spent so many years crafting its arguments and preparing for the highest court in the land.

I would not be surprised if the Court chose to hear Pro-Football, Inc. v. Blackhorse as a companion case to Lee v Tam. But it remains to be seen whether Pro-Football's Hail Mary petition will mark the end the losing streak the team experienced before the lower courts in its case.