The U.S. Patent and Trademark Office (PTO) has canceled six federal trademark registrations for the Washington Redskins, ruling that the football team’s name is disparaging to Native Americans. The Trademark Trial and Appeal Board (TTAB) of the PTO decided that six Redskins trademarks, issued between 1967 and 1990, should be canceled.
“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.
Interestingly, according to the Washington Post, a 2004 Annenberg Public Policy Center poll found that 90 percent of Native Americans said the name didn’t bother them. Instead, the board focused on a 1993 resolution adopted by the National Congress of American Indians denouncing the name. The board extrapolated that, since the National Congress represented about 30 percent of Native Americans, one out of every three Native Americans found it offensive.
In its ruling, the board cited federal trademark law that prohibits registration of marks that may disparage persons or bring them into contempt, but the board noted that the registrations will not appear in the USPTO’s records as cancelled until after any judicial review is complete. The board’s ruling is similar to one it issued in 1999, which was overturned in 2003 in large part on a technicality because the courts decided that the plaintiffs were too old. The new case was launched in 2006 by a younger group of Native Americans and a hearing was held in March 2013. Just like last time, the Redskins can retain their trademark protection during an appeal. According to the PTO, if the decision is not appealed or if it is affirmed by a federal court, the trademark owner will lose the legal benefits conferred by federal registration.
Senate Majority Leader Harry Reid said he won’t attend a Redskins home game until the team changes its name. In fact, in a letter to the team’s president, Reid called the Redskins name a racial slur that disparages the American people. The Nevada Democrat, who said he represents 27 tribes in his state, rejected Bruce Allen’s invitation to a Redskins home game until the team changes its name.
In May, half of the Senate wrote letters to the NFL urging a change in the team’s name. But, Redskins owner Daniel Snyder has vowed never to change the name. Allen had written to Reid saying the football team’s nickname is respectful toward Native Americans.
While this is a setback for the team, Anessa Kramer, a Partner in the Trademark & Copyright practice at law firm Honigman Miller Schwartz and Cohn LLP said it won’t cause immediate changes. “For the near future, we suspect that things will likely be business-as-usual. Nothing in today’s decision affects the ability of the team to use the name; it only impacts their ability to register the marks featuring the term REDSKINS, which the Trademark Trial and Appeal Board has held to be disparaging to Native Americans. Plus, the appeals process can take at least a couple of years,” she explained.
“From a legal perspective, the impact of the decision is somewhat narrow,” said Marsha Gentner, senior counsel, Dykema.
According to Gentner, The Trademark Trial and Appeal Board of the U.S. Patent and Trademark Office only decides issues regarding federal registrations, so while the TTAB ordered that all of the “Redskins” registrations be cancelled, it did not “cancel” the Washington team’s rights in “Redskins” as a trademark, or, by and large, the team’s ability to enforce those rights, under state, common law, and even the (federal) Lanham Trademark Act.
“But I can’t imagine that a decision by a federal judicial panel that “Redskins” is, and for almost half a century has been considered to be, a disparaging racial slur to Native Americans – including in the context of the NFL football team – will not have a significant impact in the court of public opinion,” she continued.
For the Washington Redskins, there may be years of appeals, and pending a final decision, the trademarks will remain enforceable. But if the ruling stands, it will threaten billions of dollars in profits for NFL teams, which share revenue.
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