The Washington Redskins’ ‘Disparaging’ Trademarks Are Cancelled

The United States Patent and Trademark Office issued an opinion on Wednesday that six trademarks registered by the National Football League’s Washington Redskins must be cancelled because they disparage American Indians. The decision gives hope to petitioners who been seeking to strip the team of federal trademark protection since 1992.

The opinion from the Trademark Trial and Appeal Board affirms three key claims: The name and symbols of the team carry an association to American Indians; they are disparaging to a substantial number of people; and the team trademarks were offensive at the time they were registered, from 1967 to 1990.

The U.S. code passed in 1946 forbids registration of trademarks “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.” The disparagement must be present at the time of the registration to be unlawful. The ruling today says that it was:

Petitioners have shown by a preponderance of the evidence that a substantial composite of Native Americans found the term Redskins to be disparaging in connection with respondent’s services [the football team] during the relevant time frame of 1967-1990.

The ruling confirms an opinion the board issued in 1999 on a petition submitted seven years earlier by a group of American Indians led by Suzan Harjo. That ruling was overturned on appeal in 2003, a decision upheld by the D.C. Circuit court in 2009. The 2009 ruling, however, claimed only that the petitioners had waited too long after reaching the age of 18 to lodge their complaint. It left open the matter of the merits of their petition. In 2006, a new, younger group led by Amanda Blackhorse filed a new petition—the one granted today by the PTO.

Bob Raskopf, the team’s trademark attorney, issued a statement saying that the ruling will have “no effect on the team’s ownership of and right to use the Redskins name and logo.” Raskopf says the team is is confident that the ruling we will be overturned on appeal: “This case is no different than an earlier case, where the Board cancelled the Redskins’ trademark registrations, and where a federal district court disagreed and reversed the Board.”

The team will continue to enjoy federal trademark protection while it appeals. And if the ruling is upheld, the Washington football team will still be able to use the name Redskins. The team will not, however, be able to complain to the U.S. government about bootleg products or other infringements. That could be costly to the team—and to the NFL because the league divides most merchandise revenue among 31 teams. (The Dallas Cowboys does its own licensing and merchandise deals.) The Redskins could still have recourse to state statutes or common law, but this would be uncharted legal territory for an NFL team.

It would also mean fighting an increasingly difficult battle in the court of public opinion. The steady trickle of protest has become a torrent in the last couple years, with President Barack Obama and a 50 U.S. Senators among many voices calling for change.

At some point, perhaps one already crossed, it would become easier and wiser to abandon the name. If and when team owner Dan Snyder relents, we have some new names and logos at the ready.

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18 June 2014 | 5:06 pm – Source: businessweek.com
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