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For the second time since 1999, the Trademark Trial and Appeal Board cancelled the “Redskins” trademark, previously owned by the professional football team the Washington Redskins. At stake were six “Redskins” trademarks, including “The Redskins” and “Washington Redskins.” The Board cancelled them all, reasoning that the mark disparaged Native Americans.
The USPTO refuses to trademark marks that are likely to offend large groups of people. In determining whether a mark is disparaging, the USPTO must ascertain (1) the meaning of the mark in question, including its meaning within the context of its use, and, if that meaning refers to an identifiable group of people or an institution, (2) whether the meaning may be disparaging to a “substantial composite” of the identified group.
In this case, after reviewing the testimony of Native Americans, newspaper articles, dictionaries, and official records and letters—as well as relying on recent precedent—the USPTO decided that the term “Redskins” is offensive to a “substantial composite” of Native Americans. Therefore, the mark must be cancelled. (In fact, the Board said it never should’ve been registered in the first place).
The first time the USPTO ruled that “Redskins” was disparaging in 1999, the ruling was overruled on what became a technicality. An appeals court reversed the decision of the overruling district court, which was that the opposers had brought their claim too late to invalidate the 1967 trademark. However, the appeals court never addressed the merits of whether “Redskins” was disparaging.
This time around, despite the Washington Redskins announcing their plans to appeal the ruling, proponents of change believe there won’t be such an easy escape. From President Barack Obama to Senator Harry Reid, the prevailing view seems to be that the Washington Redskins will have to change their name sooner rather than later.
Legally, the Washington Redskins are under no obligation to change their name just yet. The team will get to maintain its trademarked status during the appeal process, which, if history is a guide, could take another decade. Moreover, the USPTO’s ruling merely denies the football team the benefits of federal trademark registration; the USPTO lacks statutory authority on the subject of use of trademarks. Also, the Redskins can continue to rely on their common law rights.
Practically, the Redskins may find themselves in hot water. The National Football League is a revenue-sharing league. Thus, if the Redskins sell less merchandise because more fans are buying knockoffs, the entire NFL loses money. We’ll see how Washington Redskins’ owner Dan Snyder holds up to the pressure once his phone starts ringing from fellow NFL owners, asking him why their paychecks aren’t as fat as they should be.
With the appeals process not even having begun yet, the question of what happens to the Redskins is certainly not over.
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