Washington Redskins Lose Trademarks

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Today the Trademark Trial and Appeal Board made history when it decided to cancel six Washington Redskin trademarks as disparaging to Native Americans.  So what does this mean?

Well for starters, this does not mean the Washington Redskins cannot keep using their name.  In the U.S. it is not mandatory that you have a federally registered trademark to have rights to use a name.  This decision also does not mean the Washington Redskins cannot appeal the decision.  The TTAB has indicated it will not enforce the cancellations until after there has been an opportunity for the owners to appeal the decision.  In fact, last time the TTAB tried to cancel the trademarks, a federal judge overturned the decision based on the fact the name was not disparaging at the time of registration.

So what does this TTAB decision mean?  Well if successful, cancellation of the Washington Redskins marks means that the league will have a far more difficult time protecting its mark against unauthorized use in court.  In other words, it does not mean that the league’s owners cannot successfully protect the mark in court; it just means that it will be more difficult to prove in court that it has rights to the name to the exclusion of others.  Ultimately, the famous status of the Washington Redskins mark will probably prevent the unauthorized use of the mark by others without legitimate threats of litigation from the league’s owners.  Thus, it is not advisable to start using the mark without a valid license from the Washington Redskins unless you want a lawsuit on your hands.

At the end of the day, the future of the Washington Redskins name is uncertain.  Although this decision does not prevent use by the league of the name at this time, it does lead the way for future court decisions and/or laws that could force the league to change its name.  You also have to consider from a marketing standpoint that the negative press might also push the team to have no choice to change the name.

Finally, this decision should not undermine the importance of a trademark to a business.  Although the Washington Redskins can still continue use of their name, enforcement of its rights to the name will be an up-hill battle.  Ownership of federally registered trademarks is immensely important to a company and the decision to cancel these six trademarks is no doubt a huge blow to the future of the league’s name.

Curious to see more legal analysis on the Washington Redskin trademark issue?  Visit our past blog post The New Name of the Washington Redskins NFL Team.

For more information about trademarks, or if you need help with a trademark, please visit our website at www.OnlineTrademarkAttorneys.com.

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The New Name of the Washington Redskins NFL Team

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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, www.onlinetrademarkattorneys.com is where you should go.

Published May 10, 2013 by Brent Sausser.