As we noted here last week, the Director of the USPTO filed a petition for writ of certiorari to the U.S. Supreme Court requesting that it review the Federal Circuit’s en banc decision, In re Tam. That decision held Section 2(a) of the Lanham Act is unconstitutional and that the USPTO could not rely on that statutory provision to deny a federal trademark registration for “The Slants.” Now, Pro Football, Inc. (“Pro Football”)–the owners of the Washington Redskins’ trademarks–are also seeking to play on the nation’s highest judicial gridiron.
Yesterday, Pro Football filed a petition for writ of certiorari to the U.S. Supreme Court asking that the Court review a decision by the U.S. District Court of the Eastern District of Virginia that upheld the cancellation of several of Pro Football’s trademark registrations because they were disparaging to Native Americans.
Pro Football’s pivot to the Supreme Court is a bit unusual because the case is currently pending before the U.S. Court of Appeals for the Fourth Circuit. In fact, the appeal from the trial court is fully briefed and the parties are awaiting oral argument. Nonetheless, Pro Football summarizes its reason for seeking review at this stage of the game as follows:
[Pro Football] believes that Tam was correctly decided and does not warrant this Court’s review. The Court instead should consider whether § 2(a)’s disparagement clause violates the Constitution, if at all, only after the Fourth Circuit decides this case. But if this Court nonetheless grants review in Tam, the Court also should grant this petition to consider this case as 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.
It remains to be seen whether Pro Football’s “audible” will help it reach the end zone in Washington, D.C.