The United States Patent and Trademark Office has cancelled six federal trademark registrations for the name of the Washington Redskins, ruling that the name is “disparaging to Native Americans” and thus cannot receive trademark protection under federal law which prohibits the protection of offensive or disparaging language.
“We decide, based on the evidence properly before us, that these registrations must be cancelled because they were disparaging to Native Americans at the respective times they were registered,” the Trademark Trial and Appeal board wrote in its opinion.
“The Trademark Trial and Appeal Board agreed with our clients that the team’s name and trademarks disparage Native Americans. The Board ruled that the Trademark Office should never have registered these trademarks in the first place,” Jesse Witten, the plaintiffs’ lead attorney, said in a press release. “We presented a wide variety of evidence – including dictionary definitions and other reference works, newspaper clippings, movie clips, scholarly articles, expert linguist testimony, and evidence of the historic opposition by Native American groups – to demonstrate that the word ‘redskin’ is an ethnic slur.”
“I am extremely happy that the [Board] ruled in our favor,” Blackhorse said in a statement. “It is a great victory for Native Americans and for all Americans. We filed our petition eight years ago and it has been a tough battle ever since. I hope this ruling brings us a step closer to that inevitable day when the name of the Washington football team will be changed. The team’s name is racist and derogatory. I’ve said it before and I will say it again – if people wouldn’t dare call a Native American a ‘redskin’ because they know it is offensive, how can an NFL football team have this name?”
The team will appeal the case, according to a statement from its attorney, and it will be able to keep its trademark protection during appeal. Further, losing the trademark would not force the team to change its name — as the PTO pointed out in its fact sheet about the case, the Trial and Appeal Board “does not have jurisdiction in a cancellation proceeding to require that a party cease use of a mark, but only to determine whether a mark may continue to be registered.”
The media has completely mistrued the ruling in this case and has been opining that the general public will now be able to produce and sell its own merchandise. This couldn’t be further from the truth and while the general public may try and do so, they have no legal basis for doing it. While the Redskins might lose their federal trademark rights (depending on the success of the appeal), they still have common law trademark rights to the name and logo. Common law rights arise from actual use of a mark in commerce and may allow the common law user to successfully challenge a registration or application. Since the Redkins have been using the name and logo in commerce since the franchise began in 1933, they have held common law trademark rights ever since and thus, have a strong claim of ownership in that name and logo. For that reason, if the general public decides to begin making Redskins merchandise based on yesterday’s ruling, the Redskins will still be able to enforce their rights and sue the people infringing upon them. They will however, lose certain rights available to those with federal protection such as: ability to sue for statutory damages in federal court, ability to use the (r) symbol (which is irrelevant since everyone knows whose mark it is), and US Customs and Border protection.
While the ruling today was a blow to the Washington Redskins, the long term effect is minimal compared to what the media has portrayed after taking a closer look at the legal ramifications.