Partner Dyan Finguerra-DuCharme, a member of Pryor Cashman’s Intellectual Property and Litigation Groups, spoke to Law360 for its December 22, 2015 article, “ Redskins Win Big In Fed. Circ. Free Speech Ruling.”

The article reports that the Federal Circuit has overturned the government’s ban on “disparaging” trademark registrations and how this works in favor of the NFL’s Washington Redskins, who are now in a better position to win back the registrations on their controversial name.

The appeals court’s en banc ruling that the Lanham Act provisions were unconstitutional was a victory for The Slants, a Seattle-based rock band that fought the case after it was refused a trademark registration on its name on the grounds that it was offensive to Asian Americans.

The band members, themselves Asian Americans, said they had been wrongly deprived of the benefits of registration on a name that was intended to reclaim, not glorify, a racial slur. With this ruling, the band finally won the right to register their name.

The Washington Redskins lost their trademark registrations last summer because of the same provision and are currently making the same First Amendment argument against the “disparaging” ban in the U.S. Court of Appeals for the Fourth Circuit. In their case, the Redskins are asking a Fourth Circuit panel to overturn a July ruling by U.S. District Judge Gerald Bruce Lee, which said the ban on disparaging trademarks – enshrined in the Lanham Act’s Section 2a – passes constitutional muster.

The Federal Circuit rejected, in detail, the key to Judge Lee’s ruling, which was that trademark registrations, like government-issued license plates, are so-called government speech, meaning they are exempt from First Amendment scrutiny. Judge Kimberly Moore, writing for the Federal Circuit majority, said that finding was wrong, stating that it would “transform every act of government registration into one of government speech and thus allow rampant viewpoint discrimination.” The Fourth Circuit is not bound to follow that reasoning, but the Redskins now have an exhaustive new authority to point to why it should.

Finguerra-DuCharme told Law360:  “The decision flat out rejects that argument [that trademark registrations are government speech] and really goes into detail as to why it does so. It so strongly rejects the notion that this is government speech, and that was at the heart of the decision in the Redskins case.”