Here is a riddle that confused a lot of people in 2017. The federal government had spent the better part of twenty-five years trying to strip the Washington NFL team of its trademark registrations on the ground that the team's name disparaged Native Americans. Native American activists had won. The Trademark Trial and Appeal Board had ordered the registrations cancelled. A federal district court had agreed. And then, on a single morning in June, the Supreme Court of the United States handed the team a complete and unconditional victory — without the team even being a party to the case. The plaintiff who saved the most controversial trademark in American sports was not Daniel Snyder or his lawyers. It was a Portland dance-rock band called The Slants.

If that sounds like the setup to a law-school exam question, it is, more or less, exactly what one looks like. It is also one of the most useful stories in modern trademark law, because it sits squarely at the collision point of three things people care deeply about and usually misunderstand: what a trademark registration actually is, how far the government can go in deciding which brands are too offensive to register, and what the First Amendment has to say about all of it.

This article walks the whole arc, slowly and in plain language. We start with the basics of how trademark registration works and what the disparagement bar in Section 2(a) of the Lanham Act actually said. We follow the two great waves of litigation against the team — the Harjo petitions and then the Blackhorse petitions — through the TTAB (the administrative court inside the U.S. Patent and Trademark Office) and into federal court. We then pivot to the band that changed everything, Matal v. Tam, 582 U.S. 218 (2017), and explain why the Supreme Court held that the government cannot refuse to register a trademark just because it expresses a viewpoint someone finds hateful. We cover the immediate sequel, Iancu v. Brunetti, 588 U.S. 388 (2019), in which a streetwear brand spelled "FUCT" finished demolishing the rest of the old morality-based gatekeeping. And — this is new since most accounts of this saga were written — we cover the third chapter, Vidal v. Elster, 602 U.S. 286 (2024), in which the Court told us where the Tam/Brunetti principle stops. Finally we deal with the part everyone gets wrong: the team did eventually change its name — to the "Washington Football Team" in 2020 and then to the "Commanders" in 2022 — but that change had almost nothing to do with the lawsuits and everything to do with sponsors, public pressure, and a corporate scandal.

By the end you will understand not just a famous sports controversy but a genuinely important constitutional principle and its boundaries, and you will be in a much better position to make smart decisions if you are ever tempted to register a brand that is edgy, provocative, political, or deliberately rude. Spoiler: you probably can now. Whether you should is a separate and far more interesting question.

First, the foundation: what a trademark registration is (and is not)

Before we can talk about cancelling registrations, we need to be precise about what was actually at stake, because this is the single biggest source of public confusion in the whole saga. People kept saying the team "lost its trademark." That is not what happened, and the difference matters enormously.

A trademark is, at its heart, a source identifier — a word, logo, slogan, sound, color, or other symbol that tells consumers who is responsible for a product or service. When you see the swoosh, you know who made the shoes. When you hear a particular three-note chime, you know whose laptop just turned on. The law protects trademarks not primarily to reward the brand owner but to protect you, the consumer, from confusion, and to protect the goodwill the brand owner has built. If you want the gentle introduction to all of this, our companion piece on trademark basics lays out the spectrum of mark types and how rights arise, and our trademark overview—substantive standards for protection digs into the doctrine that decides which marks are protectable in the first place.

Here is the crucial part. In the United States, trademark rights come primarily from use in commerce, not from registration. The moment a business starts using a distinctive name to sell goods or services, it begins accruing common-law trademark rights in the geographic area where it operates. Those rights exist whether or not the owner ever files a single piece of paper with the government. We explore this in depth in our article on trademark rights under common law, but the headline is simple: you can own and enforce a trademark you never registered.

Federal registration on the Principal Register, administered by the USPTO, is a powerful enhancement on top of those underlying common-law rights. A registration on the Principal Register lasts ten years and is renewable indefinitely so long as the mark stays in use and the owner files the required maintenance declarations. In exchange, registration gives you a bundle of valuable advantages: a legal presumption that the mark is valid and that you own it, nationwide constructive notice of your claim (so a later user cannot credibly claim innocent good-faith adoption), the exclusive right to use the mark nationwide for the listed goods and services, the right to use the ® symbol, a path to "incontestable" status after five years, access to federal courts and enhanced remedies, and the ability to record the mark with U.S. Customs and Border Protection to block counterfeit imports. The full journey from search to registration is mapped out in the trademark process, and if you are weighing whether and when to file, our guide on when to trademark your brand is the practical companion.

Now hold those two ideas side by side. Underlying rights from use: powerful, automatic, hard to take away. Federal registration: a valuable but ultimately additional layer of advantages. When the TTAB ordered the team's registrations cancelled, it was attacking the second layer, not the first. The team could still use the name. It could still sue infringers under common-law theories and under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), which protects even unregistered marks against confusing uses. It would simply lose the procedural and evidentiary advantages — and, importantly, some of the muscle it needed to fight the rampant bootleg-merchandise industry that surrounds any NFL franchise.

So "the team lost its trademark" was always a headline-friendly oversimplification. The accurate version is "the team faced losing the federal registration advantages on a set of marks while keeping the marks themselves." Less catchy. More correct. And essential to understanding why the team kept using the name for years after the cancellation orders.

The villain of the piece: Section 2(a) of the Lanham Act

Every trademark dispute about offensive brands ran through one provision: Section 2(a) of the Lanham Act, codified at 15 U.S.C. § 1052(a). The Lanham Act is the federal trademark statute, enacted in 1946 and named for Congressman Fritz Lanham of Texas, and Section 2 is its list of grounds on which the USPTO may refuse to register a mark.

Section 2(a), as it stood for over seventy years, instructed the USPTO to refuse registration to any mark that "[c]onsists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." Buried in that long sentence were two distinct bars that would each eventually be struck down: the disparagement clause (no marks that "may disparage" people, institutions, beliefs, or national symbols) and the immoral-or-scandalous clause.

The disparagement clause is the one that mattered for the football team. The USPTO and the courts had developed a two-part test for it. First, what is the likely meaning of the mark, taking into account dictionary definitions, the relationship of the mark to the goods or services, and the context of its use? Second, if that meaning refers to an identifiable group of people, was that meaning one that "may have been disparaging to a substantial composite" of the referenced group at the time the mark was registered? Note that timing carefully — the test looked backward to the moment of registration, not to today, which becomes important because the team's core registrations dated from 1967, 1974, 1978, and 1990.

A few features of this test were doing a lot of quiet work. "A substantial composite" did not mean a majority — it could be a meaningful minority of the referenced group. And the inquiry was about whether the mark "may disparage," not whether the brand owner intended to disparage anyone. The team did not need malicious intent for the bar to apply; the question was about the mark's effect and meaning, judged from the perspective of the group it referenced. That made the disparagement clause unusually potent, and unusually subjective — exactly the feature that would eventually doom it.

Round one: the Harjo petitions (1992–2009)

The first serious legal assault on the registrations came in 1992, when Suzan Shown Harjo, a prominent Cheyenne and Hodulgee Muscogee writer and activist, joined six other Native American petitioners in filing a petition to cancel six of the team's registrations before the TTAB. The case was styled Harjo v. Pro-Football, Inc. — "Pro-Football, Inc." being the corporate entity that owns the franchise.

A cancellation proceeding is, in essence, a lawsuit inside the trademark office. A party who believes it is or will be damaged by an existing registration can petition the TTAB to cancel it. The Board then conducts something that looks a great deal like litigation — pleadings, discovery, expert reports, briefing, and a written decision — but it is an administrative tribunal, not an Article III court, and its power is limited to the register. It can cancel a registration; it cannot order anyone to stop using a name or pay damages. If you want a feel for how contentious and procedure-heavy these proceedings get, our deep dive on discovery practice in TTAB trademark proceedings shows the machinery up close.

In 1999, after years of proceedings, the TTAB sided with Harjo. In Harjo v. Pro-Football, Inc., 50 U.S.P.Q.2d 1705 (T.T.A.B. 1999), it found that the marks "may be disparaging of Native Americans to a substantial composite of this group of people" and ordered the registrations cancelled. For a moment it looked like the activists had won outright.

But the team appealed to federal court, and the win unraveled — not on the merits of disparagement, but on a doctrine that has nothing to do with whether a word is offensive. The U.S. District Court for the District of Columbia reversed, and the U.S. Court of Appeals for the D.C. Circuit ultimately resolved the case on laches. Pro-Football, Inc. v. Harjo, 565 F.3d 880 (D.C. Cir. 2009). Laches is an equitable defense that says, roughly, "you waited too long to complain, and your delay prejudiced the other side, so you forfeit your claim." It is the legal cousin of "speak now or forever hold your peace," and it belongs to a whole family of timing-based equitable defenses we unpack in understanding equitable defenses. The problem for the Harjo petitioners was that the youngest of the challenged registrations had issued in 1990 and the oldest in 1967, yet the petition was not filed until 1992 — and the courts measured the delay from when each petitioner reached the age of majority. The youngest petitioner, Mateo Romero, had turned eighteen years before the petition was filed, and the courts reasoned that the substantial, unexplained delay between when the petitioners could have sued and when they did, combined with the team's heavy investment in the brand during that gap, barred the claim. The Supreme Court declined to hear the case in 2009, and the Harjo chapter closed.

The activists had lost on laches. But — and this is the strategic genius of what came next — they had lost on a timing defense that was personal to those particular petitioners. The substantive question of whether the marks were disparaging had never been definitively resolved against the challengers. The door was still open. It just needed to be walked through by younger plaintiffs who could not be accused of waiting too long.

Round two: the Blackhorse petitions (2006–2018)

Enter Amanda Blackhorse, a Navajo activist and social worker, and four other young Native American petitioners. In 2006 they filed a fresh cancellation petition — Blackhorse v. Pro-Football, Inc. — carefully designed to dodge the laches problem that had sunk Harjo. Each petitioner had recently reached the age of majority, so none could plausibly be told they had slept on their rights for decades. They were, in effect, a new generation pressing the same substantive claim with the procedural defect surgically removed.

In June 2014, the TTAB delivered its decision, and it was a thunderclap. By a 2–1 vote, the Board ruled in Blackhorse v. Pro-Football, Inc., 111 U.S.P.Q.2d 1080 (T.T.A.B. 2014), that six registrations "must be cancelled because they were disparaging to Native Americans at the respective times they were registered." The Board sifted through dictionary usage labels marking the term as offensive, deposition and survey evidence, newspaper coverage, resolutions by the National Congress of American Indians dating to the 1990s, and the broader historical record, and concluded that a substantial composite of Native Americans found the term disparaging at the relevant registration dates spanning 1967 to 1990. The dissent argued the petitioners had not carried their evidentiary burden and that the majority had leaned too heavily on contemporary attitudes to infer historical ones — a preview of the evidentiary fights that always shadow disparagement findings.

The team appealed, and this time the case landed in the U.S. District Court for the Eastern District of Virginia before Judge Gerald Bruce Lee. The team threw everything at the disparagement clause, including a head-on constitutional argument: that Section 2(a)'s disparagement bar violated the First Amendment by allowing the government to deny a benefit based on the content and viewpoint of speech.

In July 2015, Judge Lee rejected those arguments and affirmed the cancellation order. Pro-Football, Inc. v. Blackhorse, 112 F. Supp. 3d 439 (E.D. Va. 2015). The court held, among other things, that the cancellation did not burden the team's speech because the team could keep using the name; that trademark registration was a form of government speech (and the government is free to choose what messages it endorses); and that, in the alternative, registration was a government subsidy or commercial-speech program in which content-based conditions were permissible. The court leaned heavily on Walker v. Texas Division, Sons of Confederate Veterans, Inc., 576 U.S. 200 (2015), the specialty-license-plate case the Supreme Court had just decided, which held that messages on state license plates are government speech. The court also found the disparagement clause was not unconstitutionally vague, and on the merits it agreed the marks were disparaging at the times of registration. The team had now lost before the TTAB and before a federal district judge. It appealed to the Fourth Circuit, and the case was fully briefed and barreling toward argument.

And then, two thousand miles away and on a completely different subject, a band lawsuit that had been working its way up the federal courts arrived at the Supreme Court — and rendered the entire Blackhorse appeal beside the point.

The plot twist: a dance-rock band named The Slants

Simon Tam is an Asian-American musician and activist from Portland, Oregon. In the mid-2000s he founded a dance-rock band and gave it a deliberately provocative name: The Slants. The word is, of course, a racial slur historically aimed at people of Asian descent. Tam's whole point was to seize it. He wanted to "reclaim" the term, drain it of its power as an insult, and wear it as a badge of Asian-American pride — the same impulse that has led other marginalized groups to repurpose slurs once used against them. The band leaned into Asian-American themes in its music and used the name as a statement of identity and defiance.

When Tam tried to federally register THE SLANTS as a trademark for his band's entertainment services, the USPTO refused under — you guessed it — Section 2(a)'s disparagement clause. The examining attorney reasoned that the mark was likely disparaging to people of Asian descent, citing dictionary definitions and the term's history, and that Tam's reclaiming intentions did not change the analysis. Here is the bitter irony at the core of the case: an Asian-American man was told by the federal government that his chosen name was too disparaging to Asians for him to register, because he was making a point about being Asian. The disparagement clause had no exception for self-reference, reappropriation, or pride. It looked only at whether the mark "may disparage" the referenced group, full stop.

Tam refused to back down. He appealed the refusal up through the TTAB and then to the U.S. Court of Appeals for the Federal Circuit, which hears trademark and patent appeals. In a 2015 en banc decision, the full Federal Circuit held that the disparagement clause was unconstitutional under the First Amendment as viewpoint-based discrimination. In re Tam, 808 F.3d 1321 (Fed. Cir. 2015) (en banc). The government — by then the case was captioned with Joseph Matal, the USPTO's acting director — took the case to the Supreme Court. Now two cases, one about a band and one about a football team, were both turning on the same constitutional question. The band's case got there first.

Matal v. Tam: the Supreme Court speaks

On June 19, 2017, the Supreme Court unanimously affirmed that the disparagement clause is unconstitutional. Matal v. Tam, 582 U.S. 218 (2017). All eight participating Justices agreed on the bottom line (Justice Gorsuch, newly seated, did not participate), though they splintered somewhat on the reasoning. Justice Alito wrote the principal opinion. The decision is short, readable, and quotable, and it rests on a handful of powerful ideas worth understanding because they now govern this entire area of law.

First, trademarks are private speech, not government speech. The government had argued — and the Blackhorse district court had agreed — that when the USPTO places a mark on the federal register, it endorses a message, and the government may choose which messages to endorse. The Court flatly rejected this. If federal registration converted private brands into government speech, the Court observed, then the government would be "babbling prodigiously and incoherently," simultaneously endorsing "Just Do It," "Have It Your Way," and tens of thousands of contradictory and absurd slogans. The government does not dream up, vouch for, or align itself with the meaning of the millions of marks it registers; registering a trademark is not the government talking, it is the government running a registry. That distinction matters because the government-speech doctrine is a powerful shield — when the government genuinely speaks for itself, it can say what it wants and exclude what it wants. The Court declined to extend Walker (the license-plate case) to the trademark register, and refused to let the shield swallow the trademark system.

Second, and most importantly, the disparagement clause is viewpoint discrimination, and viewpoint discrimination is the cardinal sin of First Amendment law. Justice Alito put it memorably: the clause "denies registration to any mark that is offensive to a substantial percentage of the members of any group." That, he wrote, "is viewpoint discrimination in the sense relevant here: Giving offense is a viewpoint." The government may not draw lines based on whether speech is agreeable or disagreeable, kind or cruel, uplifting or insulting. As the Court summarized in one of its most-quoted lines: "Speech may not be banned on the ground that it expresses ideas that offend." A law that lets you register a flattering mark but not a demeaning one is, by definition, picking sides based on the message — and that is precisely what the First Amendment forbids.

Third, the Court was unimpressed by the government's fallback arguments. The government tried to characterize trademark registration as a "government subsidy" (like a tax exemption or a grant), where content-based conditions are sometimes allowed. The Court rejected the analogy: registration does not involve the government handing over cash or its equivalent; if anything, applicants pay fees to the government. The government also floated a new "government-program" doctrine drawn from public-employee and limited-forum cases. A plurality of the Court doubted it applied and concluded that even under the most forgiving standard the government proposed, the disparagement clause could not survive, because a rule that targets speech for being offensive is not "narrowly drawn" to any legitimate interest. The Justices did not even need to decide whether trademarks are commercial speech subject to the more relaxed Central Hudson test, because the clause flunked even that.

The upshot was unambiguous. The disparagement clause of Section 2(a) — the precise provision the TTAB and the Eastern District of Virginia had used to cancel the football team's registrations — was struck from the books as facially unconstitutional. It could no longer be applied to anyone, for any mark, ever.

What Tam did to the Blackhorse case

Once Tam came down, the Blackhorse appeal was effectively over before it was argued. The legal ground on which the cancellation rested had been pulled out from under it. The challengers had won every round on the facts — the TTAB and Judge Lee had both found the marks disparaging — but the law they had won under no longer existed.

In January 2018, the Fourth Circuit vacated the district court's judgment and remanded in light of Tam. Pro-Football, Inc. v. Blackhorse, 709 F. App'x 182 (4th Cir. 2018). The cancellation order could not stand, because its only statutory basis had been declared unconstitutional. The team's registrations were safe. After twenty-six years of litigation across two waves of petitioners, the disparagement bar had been defeated — not by the team's evidence that the name was inoffensive (it never seriously made that case) but by a constitutional principle that protected even speech the courts had specifically found to be disparaging.

It is worth pausing on the strangeness of this result, because it is the heart of the matter. Two federal tribunals had concluded, on the evidence, that the marks disparaged Native Americans. The Supreme Court did not disturb those factual findings. It simply held that the government may not refuse or revoke a registration on that basis, because the First Amendment does not let the government discriminate against offensive viewpoints. In other words: the name might well be disparaging, and the registrations are constitutionally protected anyway. Both things can be true at once. That is an uncomfortable conclusion for many people, and it is supposed to be — robust free-speech protection is precisely the willingness to extend legal protection to expression you may find odious. The activists, including Amanda Blackhorse, made exactly that point publicly: they had lost the legal battle over the register, but they vowed to keep fighting in the court of public opinion, which is where the name change would ultimately be won.

The sequel: Iancu v. Brunetti and the word you cannot print

If Tam killed the disparagement clause, a case two years later finished off its statutory sibling. Erik Brunetti is an artist and entrepreneur who founded a streetwear brand with a name that sounds, when read aloud, like a certain unprintable expletive — but spelled FUCT. (Brunetti's counsel maintained, with admirable lawyerly composure, that the letters stand for "Friends U Can't Trust.") The USPTO refused to register the mark under the other half of Section 2(a): the bar on "immoral" or "scandalous" matter.

After Tam, the writing was on the wall, and in Iancu v. Brunetti, 588 U.S. 388 (2019), the Supreme Court struck down the "immoral or scandalous" clause too. Justice Kagan, writing for the majority, applied the logic of Tam directly: the clause discriminated based on viewpoint. It allowed registration of marks expressing approved sentiments (drug-free messages, religious affirmations, pro-social themes) while refusing marks expressing the opposite, and it let the government favor messages aligned with conventional morality over those that flouted it. A statute that "permits registration of marks when their messages accord with, but not when their messages defy, society's sense of decency or propriety" is the very definition of viewpoint discrimination. So the immoral/scandalous bar fell.

But Brunetti came with an important footnote that practitioners should not miss. Several Justices — in concurrences and partial dissents — signaled that a narrower statute might survive. The problem with the old "immoral or scandalous" bar was its breadth and its inevitable focus on the offensiveness of the message. A carefully drawn provision targeting only modes of expression — for instance, a viewpoint-neutral bar on registering vulgar or profane terms regardless of the idea they express — might be constitutional, because it would regulate the manner rather than the viewpoint. Congress has not enacted such a statute, and the USPTO cannot revive the old bars by administrative fiat. So the immoral, scandalous, and disparaging bars are all dead letters. The field looked, for a while, wide open.

The plot twist nobody expected: Vidal v. Elster and the limits of Tam

Here is where most retellings of this saga stop — and where they now miss the most interesting development. After Tam and Brunetti, it was tempting to conclude that the First Amendment had simply demolished Section 2's content-based filters across the board. If the government cannot refuse a disparaging mark or a vulgar one, surely it cannot refuse a mark on any content-based ground? In June 2024, the Supreme Court answered that question, and the answer was no.

The case was Vidal v. Elster, 602 U.S. 286 (2024). Steve Elster sought to register the phrase "TRUMP TOO SMALL" for T-shirts, a jab referencing a 2016 primary-debate exchange. The USPTO refused under a different part of Section 2 — Section 2(c), 15 U.S.C. § 1052(c), which bars registration of a mark that consists of or comprises the name of a particular living individual without that person's written consent. Elster argued that, after Tam and Brunetti, the names clause was just another unconstitutional content-based restriction on his political speech. The Federal Circuit agreed with him. In re Elster, 26 F.4th 1328 (Fed. Cir. 2022).

The Supreme Court reversed, unanimously, and upheld the names clause. The key move was a distinction the earlier cases had teed up but not resolved: the difference between a restriction that discriminates by viewpoint and one that is merely content-based but viewpoint-neutral. The disparagement and immoral/scandalous bars were fatal because they keyed on whether a message was offensive or indecent — they took sides. The names clause does not. It applies to every living person's name regardless of whether the mark flatters them, mocks them, or says nothing about them at all; "TRUMP TOO SMALL" and "TRUMP IS GREAT" would both need consent. A rule that is even-handed across viewpoints is not viewpoint discrimination, even though it turns on the content (the presence of a name).

Justice Thomas wrote the principal opinion, and its method is its own story. Rather than run the names clause through the usual tiers of First Amendment scrutiny, the Court grounded its holding in "history and tradition," observing that trademark law has always been content-based — distinctiveness, descriptiveness, and the like are all content judgments — and that restrictions on trademarking a person's name in particular have deep historical roots tied to the common-law right to control the commercial use of one's own identity. Because content-based-but-viewpoint-neutral conditions are baked into the very nature of trademark, and because this particular condition has a long pedigree, it survived. The concurrences (notably Justice Barrett's, joined in part by others) quarreled with the "history and tradition" framing and would have preferred a more conventional analysis, but every Justice agreed the names clause is constitutional.

For our purposes, Elster is the indispensable coda to the football-team story, because it draws the line that Tam and Brunetti left blurry:

  • The government may not refuse a mark because the message is offensive, disparaging, immoral, or scandalous. That is viewpoint discrimination. (Tam; Brunetti.)
  • The government may impose content-based registration requirements that do not discriminate by viewpoint — distinctiveness, non-confusion, the names clause, and the like — especially where they are grounded in the historical character of trademark law. (Elster.)

In short, the Tam line did not abolish content-based trademark rules; it abolished viewpoint-based ones. That is a far narrower demolition than the headlines suggested, and it is the doctrine that actually controls today. The bar on registering a living person's name without consent — which we discuss in trademarking your own name — is alive and well, Elster confirms it, and any would-be registrant of a provocative political mark needs to plan around it.

A snapshot of the trilogy

Case Provision at issue Result Why
Matal v. Tam (2017) § 2(a) disparagement clause Struck down Viewpoint discrimination — "Giving offense is a viewpoint"
Iancu v. Brunetti (2019) § 2(a) immoral/scandalous clause Struck down Viewpoint discrimination — favored "decent" messages
Vidal v. Elster (2024) § 2(c) living-name clause Upheld Content-based but viewpoint-neutral; rooted in history and tradition

So which Section 2 bars are still alive?

This is the part that gets lost in the excitement over the First Amendment. Tam and Brunetti knocked out two specific moral/offensiveness filters; Elster then confirmed that the rest of Section 2 is on solid ground. They did not touch the everyday gatekeeping that trips up real applicants far more often than the disparagement clause ever did. A few of the survivors:

  • Likelihood of confusion — Section 2(d). The USPTO will still refuse a mark that so resembles an existing registered or prior-used mark that consumers are likely to be confused about source. This is the single most common ground of refusal, and it has nothing to do with offensiveness. Our explainer on navigating the maze of trademark confusion breaks down the multi-factor test that courts and examiners use.
  • Mere descriptiveness and genericness — Section 2(e). Marks that merely describe the goods (or worse, are the generic name for them) cannot be registered on the Principal Register without proof of acquired distinctiveness (secondary meaning). The distinctiveness spectrum — generic, descriptive, suggestive, arbitrary, fanciful — is the backbone of choosing a strong mark, and it is fully intact. See trademark overview—substantive standards for protection.
  • Surnames and names of living individuals — Sections 2(e)(4) and 2(c). Primarily-surname marks face a bar absent secondary meaning, and — as Elster now squarely confirms — you cannot register a mark consisting of a living person's name without consent. We cover the surname trap and the consent rule in trademarking your own name.
  • False suggestion of connection and deceptiveness — still in 2(a). Notably, Tam and Brunetti did not erase all of Section 2(a). The bars on deceptive matter and on falsely suggesting a connection with persons, institutions, or national symbols survive, because those provisions are not about suppressing an offensive viewpoint — they protect consumers from being misled, a classic and constitutionally permissible government interest.
  • Functionality, flags and official insignia, and more. A grab-bag of other bars (functional product features, government flags and seals, and so on) continues to apply.

The practical lesson: the death of the disparagement clause did not turn the trademark register into a lawless free-for-all. It removed one specific kind of moral judgment. Everything else about getting a registration — distinctiveness, non-confusion, proper specimens, accurate goods-and-services descriptions — is exactly as demanding as it was before. If you are actually trying to register something, the trademark process and trademark registration guide remain your roadmaps.

"But wait — the team changed its name anyway." Yes. Here's why.

Now we arrive at the fact that confuses everyone, because the timeline looks backwards. The team won in 2017 and 2018. Its registrations were secure. The constitutional cloud was gone. And then, in 2020, it abandoned the name — and in 2022 it adopted a brand-new one, the Commanders.

If the law was on the team's side, why did it cave? Because the lawsuit was never really the lever that moved the team. The lawsuit was about the register. The thing that ultimately changed the name was a confluence of commercial and cultural pressure that had been building for years and crested in the summer of 2020.

The proximate cause was money — specifically the team's sponsors and its stadium-naming-rights partner. In July 2020, in the wake of a national reckoning over race following the killing of George Floyd, major corporate sponsors — including FedEx, which held the naming rights to the team's stadium, along with Nike, PepsiCo, and others — publicly pressed the franchise to change the name. Some sent formal letters; some pulled merchandise; FedEx's request to drop the name was reported widely and was understood to carry the weight of a roughly $200 million naming-rights relationship. Institutional investors connected to those sponsors added their voices. When the people who pay you tell you the brand has become a liability, even a stubborn owner listens.

Within days, the team announced it would "retire" the name and logo. For two seasons it played as the generic "Washington Football Team" — a placeholder while it conducted a brand search and, not incidentally, cleared and registered new marks. Choosing a new NFL name is a serious trademark-clearance exercise: the franchise had to navigate squatters who had rushed to file applications on every plausible candidate, conduct a comprehensive clearance search, and lock down domain names and social handles before announcing. In February 2022, it unveiled the Washington Commanders.

Two more threads complicate the tidy "they did the right thing" narrative, and an honest account includes both. First, the change coincided with intense scrutiny of the franchise's workplace culture and the conduct of its then-owner, including congressional investigations and a sprawling NFL inquiry — context that some observers felt made the rebrand as much about distancing the franchise from controversy as about racial reconciliation. Second, the franchise changed hands entirely in 2023, when a group led by Josh Harris purchased the team, closing the Daniel Snyder era. The name change, in other words, was the product of sponsors, public pressure, scandal, and ultimately new ownership — not a court order, and not the disparagement clause, which by then was constitutionally defunct.

This is the single most important takeaway of the whole story for anyone who works in or near brand law: trademark law decided whether the team could keep its registration; the market decided whether the team would keep its name. Those are different systems with different rules, and they reached opposite conclusions. The law said "you may keep it." The market, eventually, said "you'd better not." Both were operating exactly as designed.

A worked example: meet "Acme Reclaimed Apparel"

Let's make the doctrine concrete with an invented hypothetical, because the abstractions get slippery. (This scenario is hypothetical and for illustration only.) Suppose a founder named Dev launches a clothing line called Acme Reclaimed Apparel and wants to register a mark — a single provocative word that has historically been a slur against the founder's own community, which Dev intends to reappropriate as an act of pride, exactly as Simon Tam did with The Slants.

Before 2017, that application would have been refused under the disparagement clause, no matter how sincere Dev's reclaiming intentions, because the old test asked only whether the mark "may disparage" the referenced group, not whether the applicant meant well. Dev's heartfelt purpose would have been legally irrelevant.

After Tam, the USPTO cannot refuse the application on disparagement grounds at all — that bar is gone. And after Brunetti, even a different shock-value word that reads as vulgar cannot be refused on "scandalous" grounds. So the offensiveness filter is no longer a barrier.

But Dev is not home free, and this is where new founders get tripped up. The mark still has to clear everything else. Is the word merely descriptive of the clothing? Is it confusingly similar to an existing registration in the apparel class (a Section 2(d) problem)? Is it primarily a surname? And — the Elster wrinkle — does the mark contain the name of a living person? Suppose Dev's edgy slogan name-checks a celebrity or a sitting politician to make its point. After Elster, Section 2(c) still bars that absent written consent, even though the message is political and even though Dev finds it expressive — because the names clause is viewpoint-neutral and historically grounded, not a forbidden offensiveness filter. Does the mark falsely suggest a connection with some real person or institution? Did Dev submit a proper specimen showing real use in commerce, and an accurate description of goods? Any one of those can sink the application even though the offensiveness bars are dead.

And separately — entirely outside trademark law — Dev should think hard about the business consequences. As the football team learned, a legally registrable brand can still be a commercial catastrophe if customers, retailers, payment processors, and ad platforms recoil from it. The right to register is not the same as the wisdom of doing so. Before committing, Dev would be wise to read when to trademark your brand and weigh the rebrand costs that lurk if the gamble backfires.

The constitutional principle, stated plainly

Strip away the football and the band and the streetwear and the T-shirts, and the trilogy stands for a principle bigger than trademarks: the government cannot condition a generally available benefit on the speaker's willingness to express only inoffensive viewpoints — but it may impose neutral, content-based eligibility rules that do not take sides. Federal trademark registration is open to all comers who meet the viewpoint-neutral requirements (distinctiveness, non-confusion, the names-consent rule, and the like). The government may impose those neutral requirements. What it may not do is layer on a filter that asks, "Does this message offend people? Does it accord with society's sense of decency? Does it disparage somebody?" — and refuse registration based on the answer. That is viewpoint discrimination, and viewpoint discrimination triggers the most demanding scrutiny the First Amendment knows, which the old bars could not survive. Elster completes the picture by confirming that the line is viewpoint, not content: trademark law has always made content judgments, and that is fine, so long as it does not punish a message for the side it takes.

This is, deliberately, a principle with sharp edges. It protected The Slants, and it protected FUCT, and it protected the football team's registrations, all in the same breath, regardless of whether any given observer finds those names empowering, juvenile, or genuinely hurtful. The First Amendment's protection of offensive speech is not a bug in these decisions; it is the entire point. As the Tam Court put it, the proudest boast of our free-speech jurisprudence is that we protect the freedom to express "the thought that we hate." A government empowered to deny benefits to "hateful" trademarks is a government empowered to decide which ideas are too hateful to deserve them — and the Justices, unanimously, were not willing to hand it that power.

It is equally important to be clear about what these cases do not do. They do not require anyone to like an offensive mark, buy from it, or amplify it. They do not stop private companies — sponsors, stores, stadiums, streaming services, ad networks — from refusing to associate with a brand they find repugnant. They do not stop the public from organizing, boycotting, and persuading. And, per Elster, they do not strip the USPTO of its ordinary, viewpoint-neutral gatekeeping. The football team's saga is the perfect illustration: the First Amendment kept the government from cancelling the registration, and then private actors and public opinion changed the name anyway. Free-speech law constrains the state; it does not conscript the market into endorsing speech it dislikes. Both halves of that sentence are doing real work.

How this fits the rest of trademark law

For the brand owners and entrepreneurs who make up much of our readership, the Tam/Brunetti/Elster line is best understood as one chapter in the larger story of how trademarks are chosen, cleared, registered, and defended. A few connection points worth holding onto:

The cases sit alongside the core distinctiveness analysis that determines whether any mark is registrable. An edgy name still has to be distinctive and non-confusing; the death of the disparagement clause does not exempt it from the spectrum that runs from generic to fanciful. If you are choosing a brand, start with the fundamentals in trademark basics, the registrability doctrine in trademark overview—substantive standards for protection, and the procedural lifecycle in the trademark process.

They also clarify a frequent point of confusion between different kinds of intellectual property. A team name, a logo, a fight song, and a uniform design can implicate trademark, copyright, and even trade-dress protection all at once — and the rules differ sharply across those regimes. Our side-by-side explainer, copyright vs. trademark — what is the difference, is the place to untangle which body of law governs which asset, because "offensive content" doctrines, registration mechanics, and durations are not the same for a logo's artwork (potentially copyright) as for the brand name (trademark).

Finally, the saga is a master class in the gap between legal defensibility and commercial viability, which is the theme that runs through almost every branding decision. You can be completely right on the law and still be in deep trouble in the marketplace. Conversely, a beloved brand with a sloppy legal foundation can be one cancellation petition or one confusion claim away from disaster. The smart move is to get both right — which usually means clearing your mark thoroughly, registering it properly, policing it consistently, and stress-testing it against the audience and partners you actually depend on, long before you fall in love with it. Our guidance on when to trademark your brand is built precisely for that decision.

Key takeaways

  • The team never lost the right to use its name. What was at stake throughout was federal registration — a valuable bundle of advantages layered on top of common-law rights that come from use. Cancelling a registration weakens enforcement; it does not erase the underlying mark.
  • Two waves of activists pressed the disparagement claim. The Harjo petitioners (filed 1992) won at the TTAB in 1999 but lost in court on laches — a timing defense — without the disparagement question ever being finally resolved against them. Pro-Football, Inc. v. Harjo, 565 F.3d 880 (D.C. Cir. 2009). The younger Blackhorse petitioners (filed 2006) cured the timing problem and won at the TTAB in 2014 and in the Eastern District of Virginia in 2015. Pro-Football, Inc. v. Blackhorse, 112 F. Supp. 3d 439 (E.D. Va. 2015).
  • Matal v. Tam, 582 U.S. 218 (2017), changed everything. A unanimous Court held the disparagement clause violates the First Amendment as viewpoint discrimination, because "[g]iving offense is a viewpoint" and trademark registration is private speech, not government speech. That ruling rescued the football team's registrations even though the team was not a party; the Fourth Circuit vacated the cancellation in 2018. Pro-Football, Inc. v. Blackhorse, 709 F. App'x 182 (4th Cir. 2018).
  • Iancu v. Brunetti, 588 U.S. 388 (2019), finished the job by striking the "immoral or scandalous" bar — though several Justices suggested a narrowly drawn, viewpoint-neutral bar on vulgar terms might survive if Congress ever enacted one.
  • Vidal v. Elster, 602 U.S. 286 (2024), drew the limit. A unanimous Court upheld Section 2(c)'s living-name clause, holding that a content-based but viewpoint-neutral registration condition, rooted in trademark's history and tradition, does not offend the First Amendment. The takeaway: Tam killed viewpoint-based bars, not content-based ones.
  • The rest of Section 2 is untouched. Likelihood of confusion (2(d)), descriptiveness/genericness (2(e)), surname and living-name bars (2(e)(4), 2(c)), deceptiveness and false-connection bars, and functionality all still apply. Offensive marks are now registrable; bad marks still are not.
  • The name changed for market reasons, not legal ones. Sponsor pressure (notably FedEx and the stadium naming rights), public opinion, a workplace scandal, and ultimately a 2023 sale — not any court order — drove the 2020 retirement and the 2022 rebrand to the Washington Commanders. Trademark law decided the team could keep the name; the market decided it wouldn't.

Frequently asked questions

Did the Washington Redskins actually lose their trademarks? No. At the high-water mark of the litigation, the team faced losing six federal registrations — the enhanced advantages that come from being on the USPTO's Principal Register — not the trademarks themselves. Trademark rights in the United States flow primarily from use in commerce, so the team could have kept using the name and enforcing it under common law and Section 43(a) of the Lanham Act even if the registrations had been cancelled. And in the end the registrations were never cancelled, because Matal v. Tam struck down the legal basis for the cancellation before it became final.

What was the "disparagement clause," and is it still law? It was part of Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), which directed the USPTO to refuse registration to marks that "may disparage" people, institutions, beliefs, or national symbols. The Supreme Court struck it down as unconstitutional viewpoint discrimination in Matal v. Tam, 582 U.S. 218 (2017). It is no longer enforceable against any mark.

How could a band's lawsuit save the football team's trademarks? Because both cases turned on the same statute. The disparagement clause applied to every applicant equally. When the Supreme Court held in Tam (the band case) that the clause was facially unconstitutional, the clause vanished for everyone — including the football team, whose cancellation rested entirely on that clause. The Fourth Circuit then vacated the team's cancellation in light of Tam, even though the team had no role in the band's case.

Does this mean you can now register any offensive trademark you want? You can register marks that are disparaging, vulgar, or scandalous in content — those specific bars are gone after Tam and Brunetti. But every other registration requirement still applies: the mark must be distinctive (not merely descriptive or generic), must not be likely to cause confusion with an existing mark, must not be deceptive or falsely suggest a connection with a real person or institution, must not consist of a living person's name without consent (a rule the Court upheld in Vidal v. Elster in 2024), must be backed by genuine use in commerce, and so on. Plenty of provocative applications still fail on those ordinary grounds. And registrability is not the same as commercial wisdom.

Wait — didn't the Supreme Court strike down all the content-based trademark bars? No, and this is the most common misreading of the trilogy. Tam and Brunetti struck down viewpoint-based bars — rules that punished a mark for being offensive or indecent. In Vidal v. Elster, 602 U.S. 286 (2024), the Court made the distinction explicit and upheld a content-based but viewpoint-neutral rule (the bar on registering a living person's name without consent), reasoning that trademark law has always been content-based and that this particular condition is grounded in history and tradition. So the line that matters is viewpoint versus content, not content versus no-content.

If the team won, why did it change the name? The legal victory protected the registrations, but the name change was driven by commercial and cultural pressure that the law does not touch. In July 2020, major sponsors — including FedEx, which held the stadium naming rights — publicly urged a change, and the team retired the name within days. It played as the "Washington Football Team" for two seasons and rebranded as the "Commanders" in 2022. A workplace-culture scandal and a 2023 change of ownership were part of the backdrop. None of that was a court order; it was the market and public opinion at work.

Could Congress bring back any of the old bars? Possibly a narrow version. In Iancu v. Brunetti, several Justices suggested that a viewpoint-neutral statute targeting only vulgar or profane modes of expression — regardless of the idea expressed — might survive the First Amendment, because it would regulate manner rather than viewpoint. Vidal v. Elster reinforces that a viewpoint-neutral, content-based rule can be constitutional. But the old "disparaging" and "immoral or scandalous" bars, which keyed on offensiveness and morality, cannot be revived, and Congress has not enacted a replacement. The USPTO cannot reinstate them on its own.

What is the difference between the TTAB and a federal court in all this? The Trademark Trial and Appeal Board is an administrative tribunal inside the USPTO. It can decide oppositions and cancellations and can order a registration cancelled, but it cannot stop anyone from using a name or award damages. Federal courts can do those things, and the team appealed the TTAB's cancellation into federal court, where the constitutional fight played out. For more on the TTAB's procedures, see our guide to discovery practice in TTAB trademark proceedings.

Does free-speech protection for a trademark mean sponsors and stores have to carry it? No. The First Amendment restrains the government, not private companies. Tam and Brunetti stop the USPTO from refusing registration based on offensiveness; they do not require any sponsor, retailer, stadium, ad network, or payment processor to do business with a brand it finds objectionable. That is exactly why the team kept its registrations and still lost its name — the government could not interfere, but the market was free to walk away.

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This article is general legal information, not legal advice. Trademark registrability, First Amendment doctrine, and branding strategy turn on specific facts and evolving law; consult qualified counsel before acting. For tailored guidance, contact mclaw.io.