INITIAL CALL ON THE FIELD

In June 2014, the U.S. Patent and Trademark Office (USPTO) stripped the Washington Redskins (Washington) of their federal trademarks, finding the term “Redskins” was disparaging under Section 2(a) of the Lanham Act.

REPLAY OFFICIAL CONFIRMS THE CALL

Washington sought an instant replay before the District Court for the Eastern District of Virginia, but that Court affirmed the USPTO’s initial call.  Washington then sought a replay in the Fourth Circuit Court of Appeals, but this week, while that decision was under review, Washington threw a Hail Mary pass, asking the Supreme Court to intercede even before the Fourth Circuit decides Washington’s appeal.

WASHINGTON’S END AROUND

Washington’s unorthodox move is the result of another scrimmage — this one between the USPTO and the Portland dance-rock band, The Slants. As discussed in our prior post,  The Slants, a band comprised of Asian Americans, tried to register their name with the USPTO, but the USPTO refused, citing Section 2(a).  The Slants appealed the USPTO decision, lost at trial, but then won when the Federal Circuit reversed , finding that Section 2(a) was unconstitutional restraint of free speech under the First Amendment.

JOINING A GAME ALREADY IN PROGRESS

Last week the USPTO petitioned the Supreme Court to settle whether Section 2(a) violates the First Amendment. The thrust of the USPTO’s argument is that The Slants (and by extrapolation Washington) have free speech to call themselves whatever they want; the government is not stopping them.  They just aren’t entitled to “federal trademark registration,” i.e., a stamp of approval for their use of “disparaging” names.

So Washington’s latest play is essentially joining The Slants to pile on the USPTO and knock Section 2(a) out of the trademark registration game.

That loud, horrible sound you may have heard this morning was New England Patriot fans gnashing their collective teeth. This morning the Second Circuit reinstated the NFL’s four game suspension of Patriot quarterback Tom Brady.

Scene of the Crime

Way back in January 2015, Brady was implicated in a plot to underinflate the footballs the Patriots used during the first half of their playoff game against the Colts. The weather was inclement and under inflation makes it easier to grip the footballs.  Deflate-gate sparked a scientific brou ha-ha, pitting scientists who happen to live in New England against scientists in the rest of the known universe.

The Evidence

There is no question that the Patriot equipment managers intentionally underinflated the Patriot’s footballs, but the evidence against Brady was largely circumstantial:

• The Patriot equipment managers exchanged emails and texts about Brady’s preference for underinflated footballs;
• As a veteran, all-pro quarterback Brady knew the balls were underinflated even if there was no “smoking gun” communication, in which Brady expressly requested that they be underinflated.
• The day NFL announced the deflate gate investigation, Brady had a 25 minute call with one of the Patriot equipment mangers, and subsequently had a lengthy personal meeting.
• When the NFL asked to check his phone for communications with the Patriot equipment managers, Brady destroyed his phone.

Round I   NFL 1-Brady 0

In May 2015, the NFL issued a detailed report and suspended Brady four games and docked the Patriots their 2016 first round draft pick. Brady appealed the suspension and has not served his suspension while his appeal worked its way through the slow wheels of justice.

Round II NFL 2-Brady 0

Brady’s initial appeal was heard by NFL Commissioner Roger Goodell, who, not surprisingly, upheld the suspension.

Round III NFL 0-Brady 1

Brady then appealed the suspension to the U.S. District Court for the Southern District of New York. In September 2015, that Court vacated the suspension, finding that the NFL Commissioner had “deprived Brady of fundamental fairness” and had exceeded his authority by suspending Brady.

Round IV NFL 1-Brady 0

But today the Second Circuit held that “the Commissioner properly exercised his broad discretion under the collective bargaining agreement and that his procedural rulings were properly grounded in that agreement and did not deprive Brady of fundamental fairness.”

Round V-?

My bookie, Murray, says the under/over is 48 hours on how long it takes Brady/the Patriots to announce they are “taking this matter all the way to the Supreme Court.” I’m taking the under.