U.S. Deals Harsh, But Not Fatal, Blow Against Washington Redskins
Is this the end of the "Washington Redskins?"
The NFL team currently owns several trademarks, including The Redskins, The Washington Redskins and Redskins. A ruling issued today by the U.S. Patent and Trademark Office (USPTO) Trial and Appeal Board now puts all these marks in jeopardy. The Trial and Appeal Board have cancelled all of these registrations on the grounds that they are “disparaging” to Native Americans. Under Section 2 of the Trademark Act (15 USC 1052), “disparaging” marks are ineligible for federal registration.
This case, Blackhorse v. Pro Football, was brought eight years ago by five Native Americans seeking to cancel the Redskins trademarks. This is the second time the USPTO Trial and Appeal Board has faced a petition to cancel the Redskins registrations.
In 1992, seven Native Americans filed a petition to cancel the Redskins trademarks on the same grounds, arguing the marks disparage Native Americans. The board ruled in their favor, but the football team appealed to the U.S. District Court for the District of Columbia and ultimately won the right to use the name. In the current 177-page opinion, the Trial and Appeal Board deems the term Redskin to be offensive, disparaging and contemptuous.
What does the current ruling mean? Is the Washington D.C. professional football team now permanently barred from using the term “Redskin?” Not exactly.
Under the ruling, the football team would lose many legal rights, but not all. The team would no longer be able to use the federal registration -- ® -- symbol in conjunction with any of the Redskin trademarks. Second, the team would lose the exclusive right to sell goods, such as jerseys and bumper stickers, touting the “Redskins” logo. The team would also lose the ability to record its registration with the U.S. Customs Border Patrol Services so as to block the importation of infringing or counterfeit foreign goods into the country.
However, the team would not be legally barred from using the trademark. An individual or company can still legally use a mark, albeit in limited capacities, sans federal trademark protection.
It is almost certain that the Washington Redskins will appeal this decision in the U.S. Court of Appeals for the Federal Circuit in Washington D.C. or the Eastern District of Virginia.
The Redskins preseason kicks off Aug. 7 with a battle against the New England Patriots. It is likely the more fascinating battles this season will be those behind the scenes with the team ownership and the USPTO.
Related: How to Avoid Trademark Infringement