The New Name of the Washington Redskins NFL Team

It’s not a question of will it happen, it’s a question of when will it happen? My guess is that within the next two years, the Washington Redskins will go by another name. A recent Congressional bill entitled,The Non-Disparagement of American Indians in Trademark Registrations Act was introduced recently that proposes to deem the term, “redskin(s)” a disparaging word that cannot be registered as a trademark in the U.S. The Washington Post and USA Today both report that this bipartisan bill will prevent the future registration of trademarks using the term “redskin(s)” as well as cancel all existing federal trademarks using the term.

The bill seeks to amend the Trademark Act of 1946 or otherwise known as the Lanham Act. Specifically, it seeks to add the term “redskin(s)” to the current disparaging definition. In accordance with the Lanham Act section 2(a), trademarks shall be refused registration if they “disparage…persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute”. Here, the bill will amend the current Act to cancel any registration that includes the disparaging term. Among those that will be canceled are the six registrations currently owned by the Washington NFL team.

This is not the first attempt to cancel the mark, however, this is the one that will succeed. In 1992, Suzan Harjo along with six other Native Americans petitioned the Trademark Trial and Appeal Board (TTAB) to cancel six registrations owned by Pro-Football, Inc. (owner of the Washington Redskins). Harjo lost that case on a defense of laches by Pro-Football. Simply put, the laches defense applies when a party waits too long to file an objection. Here, Pro-Football registered the name in 1967 and the claim was brought in 1992, too long in the court’s opinion. However, this time it’s different.

This bill seeks to retroactively cancel all registrations. In other words, if this bill passes the House and the Senate, goodbye Washington Redskins trademark. This does not mean the NFL team will have to change its name. However, it does mean the trademark is no longer protected under federal law and as a result it will be tougher to defend the name in infringement cases. So will they change their name? You bet they will. Above all, to ensure they don’t offend anyone. Additionally, federally registered trademarks represent a valuable commodity in the NFL. Just imagine all those new product sales.

Goodbye Washington Redskins, Hello Washington………?

In the trademark world, good things don’t come to those that wait.  If you seek trademark registration, is where you should go.

Published May 10, 2013 by Brent Sausser.


Can “Boston Strong” Really be Trademarked?


Generally speaking, Americans are fairly accepting of a person’s creative pursuits to making a buck. After all America is the land of the free. However, recent events have brought a new meaning to what is fair game when it comes to making a profit.

Just days after the April 17th Boston bombings, a total of seven applications were submitted to the United States Patent and Trademark Office (“USPTO”) seeking to trademark the now famous catchphrase “BOSTON STRONG.” Although there are many purposes to filing a trademark, one of the main reasons to do so is to exclude others from using the phrase to profit from it commercially. With six of the seven trademarks filed having to do with clothing and accessories and the seventh related to beer, this would potentially mean only one of these eight applicants would have the right to profit from the catchphrase.

At this time it is unclear what the USPTO will do. However, trademark registration of a catchphrase after a national tragedy is nothing new. After the 9/11 attacks the Todd M. Beamer Foundation successfully filed for and received trademark rights to the phrase “LET’S ROLL”. The phrase became a national catchphrase after it was publicized that these were the last words of United Flight 93’s passenger Todd M. Beamer.

Keep in mind that a trademark can literally be any word, phrase, sound or even scent. The only requirement is that the mark be used for commercial purposes to identify the source of a particular product or service. It is arguable that merely using the phrase “BOSTON STRONG” on a t-shirt or other clothing is probably not enough to establish rights to a trademark. This is because using the phrase in this way does not necessarily identify the source of such goods, especially where so many other companies have sold t-shirts with the exact same catchphrase. With that said, the same argument probably does not apply to Samuel Adams brewer Boston Beer Co., who has filed the trademark application for “BOSTON STRONG” as it relates to beer. According to the beer company, they plan to use the phrase in relation to its 26.2 Brew. Here, the catchphrase actually identifies a particular product that Boston Beer Co. sells and distributes, their 26.2 Brew. This possibly could be viewed as an appropriate use of the catchphrase as a trademark, assuming the USPTO does not find other grounds to deny their application.

At the end of the day, there are many reasons the USPTO could deny any of these applicants trademark rights to the catchphrase BOSTONG STRONG and most trademark experts believe the applicants will not be successful. What’s more, any action by the USPTO will take another 6-7 months, which leaves you to wonder if the decision to trademark the catchphrase BOSTON STONG was really worth the $325 filing fee.

Published May 8, 2013 by Alex Spurr.