Hey Big Brother, Leave the ‘Redskins’ Alone: US Patent Office Cancels ‘Redskins’ Trademark Registration

Screenshot 2014-06-19 at 9.04.04 AMEditor’s Note: Sticks and stones may break my bones, but words will make me angry and take legal action against your brand. Is that how the old saying goes?

A panel of judges with the U.S. Patent and Trademark Office on Wednesday canceled what they called “disparaging” trademarks associated with the Washington Redskins for the second time in 15 years amid mounting political pressure on the team to change its name.

“We decide, based on the evidence properly before us, that these registrations must be canceled because they were disparaging to Native Americans at the respective times they were registered,” the judges wrote in an 81-page ruling.

The action, which would impact six different trademarks, does not have any immediate effect, nor does it bar the team from using the nickname. It allows for a federal court review of the decision, and it stipulates the team does not have to act on the ruling until the appeals are exhausted — a process likely to take years.

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Team owner Daniel Snyder declined to comment on the development after Wednesday’s minicamp practice at Redskins Park in Ashburn, Virginia. Bob Raskopf, trademark attorney for the team, said in a statement that the team would appeal the decision.

Even if the team were to lose an appeal, the loss of the federal trademark is more a symbolic blow than a fatal one. Legal experts say the Redskins‘ trademarks would still be protected under common law, and the team would be able to pursue legal action against anyone who used the logo or name without permission, for instance to make knockoff hats or jerseys.

“While this probably is a moral victory for people who don’t like the term, it isn’t going to keep the team from using the term or even suing other people who are,” said Kristen Osenga, a law professor at the University of Richmond School of Law. “I don’t think they are going to lose a whole lot of anything because of this, even if they lose their appeal.”

If the team’s inability to protect its trademark and logo were to result in a revenue loss, the effects would be felt across the entire league thanks to profit-sharing agreements. NFL teams pool their merchandising revenue and then divide it, meaning that while the Redskins wouldn’t be financially crippled, other NFL team owners might feel compelled to pressure Mr. Snyder to address the situation, said Marc Edelman, law professor at the Baruch College’s Zicklin School of Business.

“It could indirectly affect the other 31 NFL team owners as well,” Mr. Edelman said. “This might put some pressure on Daniel Snyder to change the team name from some of the other NFL owners, who will not want to deal with the extra challenges in policing the team’s marks.”

Brian McCarthy, the NFL’s vice president of corporate communications, said via email that the league had no comment on the ruling beyond Mr. Raskopf’s statement.

The legal challenge against the Redskins was brought in 2006 by five American Indians who filed a complaint with the Trademark Trial and Appeal Board on the grounds that laws prohibit “registration of marks that may disparage persons or bring them into contempt or disrepute.”

The ruling, which looked in detail at the history of the team’s name and logo and the use and connotations of the word “redskins,” impacts the team’s name and the name of the cheerleader squad, the Redskinettes, as well as a series of stylized logos registered between 1967 and 1990.

The ruling was affirmed 2-1 by a three-judge panel and written by Administrative Trademark Judge Karen Kuhlke. Also on the panel were Judge Peter W. Cataldo and Judge Marc A. Bergsman. All three judges were appointed during the administration of former President George W. Bush.

Judge Bergsman dissented from the decision to cancel the trademark, saying “To be clear, this case is not about the controversy, currently playing out in the media, over whether the term ‘redskins,’ as the name of Washington’s professional football team, is disparaging to Native Americans today.”

The judge said the panel was tasked with deciding whether the term was disparaging at the time each of the challenged registrations was issued, and in an 18-page dissent he was deeply critical of the arguments supporting that position.

“It is astounding that the petitioners did not submit any evidence regarding the Native American population during the relevant time frame, nor did they introduce any evidence or argument as to what comprises a substantial composite of that population, thereby leaving it to the majority to make petitioner’s case have some semblance of meaning,” Judge Bergsman wrote.

This article continues at Washingtontimes.com


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