Over the past couple of years, the Washington Redskins have been at the center of a controversy over whether their name and mascot should be changed, as many feel the term “Redskins” has racist roots. Although this argument isn’t new, the story has gained much more traction now than it has before.
On June 18, news traveled quickly that the Trademark Trial and Appeal Board of the US Patents and Trademarks Office cancelled the Washington Redskins’ federal trademarks based upon its ruling that the name was “disparaging to Native Americans.” The board relied on 15 U.S. Code 1052(a), which states as follows:
No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it consists of or comprises immoral, deceptive, or scandalous matter; or matter 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…
Although the ruling does not force the Redskins to change the name of the team, it does make it more difficult for the Redskins and the National Football League to make money from the sale of merchandise with the Redskins name and logo. Currently, the team and league license third-parties to produce clothing and merchandise that bear the Redskins brand. The most direct and cost effective way to protect a brand is through trademark enforcement. Without a trademark to protect their name, the Redskins will have to resort to more costly avenues of protection, like lawsuits grounded in traditional torts.
So what options does the organization have moving forward? It may come as a surprise to learn that the Trademark Trial and Appeal Board made the exact same decision regarding the Redskins trademark fifteen years ago. In 1999, a different group of Native Americans achieved a similar ruling, only to lose on appeal in federal court when the court ruled that the plaintiffs did not have standing to bring the suit.
In this case, like the 1999 case, the Redskins will appeal the ruling of the Trademark Trial and Appeal Board in Federal District Court, and will undoubtedly make the same argument that won the day a decade and a half ago—that the plaintiffs lack standing to prosecute the case. The Redskins organization will also probably argue that the trademarked name and logo are not “disparaging to Native Americans,” which would be consistent with public statements the Redskins organization has made since this issue has come to the forefront of American sports. Whether they will be able to prove that in court is another issue entirely—and if they prevail on the issue of standing, they will not need to.
If the Redskins prevail again on appeal, they will be permitted to retain and enforce not only their Redskins trademark, but also other associated trademarks. As such, it would be business as usual, albeit with the albatross of racist accusations hanging around the neck of the organization—a burden it has thus far been willing to bear. If the Redskins lose in federal court, the financial blow of the loss of millions of dollars in licensing fees may be enough to entice the Redskins to change their name.
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