Thursday, April 28, 2016

Pro-Football Seeks Certiorari-Before-Judgment in REDSKINS Appeal

On April 25th, Pro-Football, Inc. filed a Petition for Writ of Certiorari Before Judgment (pdf here), in the REDKSINS case now pending before the U.S. Court of Appeals for the Fourth Circuit, asking the Supreme Court to consider immediately the issue of the constitutionality of Section 2(a)'s disparagement clause. Pro-Football argues that the Supreme Court should either deny certiorari in the SLANTS case, or consider the REDSKINS case in tandem with In re Tam.

According to Pro-Football, the REDSKINS case is an "essential and invaluable complement to Tam:

Assuming the Court grants review in Tam, this case is the paradigmatic candidate for certiorari before judgment because it is a necessary and ideal companion to Tam. The Court often has granted certiorari before judgment to consider complementary companion cases together, especially when the two cases raised important questions of constitutional law. Granting certiorari before judgment allows the Court to consider the question presented in a wider range of circumstances, resolve intertwined, equally important questions, and avoid piecemeal review. All of that is true here.

As in other cert-before-judgment cases, this case would allow the Court to consider Tam’s First Amendment question in the full range of circumstances, including both initial denials of registration and after-the-fact cancellations. The cancellation context here not only rounds out the scenarios in which § 2(a) applies, but also poses the gravest threat to free speech and is by far the most constitutionally suspect. Thus, even were the government to prevail in Tam, this Court’s decision likely would not govern the cancellation context.

Read comments and post your comment here.

TTABlog comment: I hope the Supremes take both cases.

Text Copyright John L. Welch 2016.


At 12:32 PM, Blogger Bob Klein said...

Both these cases seem to me to be not about "freedom of speech" but rather whether the government can/should grant a trademark monopoly for "offensive" terms. I'm sure there is a line that needs to be drawn somewhere because we can all think of words that we would never want to see used as trademarks. I too hope the Supremes take this up and restore the PTO's authority in this area.

At 1:48 PM, Anonymous Anonymous said...

Judgment not Judgement.

At 4:01 PM, Anonymous Anonymous said...

Why can't the 4th Circuit hearing of the Redskins be accelerated? Or maybe the Supreme Court needs to delay its cert action for Tam since it should wait for a 9th Justice anyway.


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