“U.S. Patent & Trademark Office cancels the Washington Redskins trademark registrations,” The Wall Street Journal is reporting.
More as details become available.
If true, this is a game changer. The team would be essentially forced to change its name in order to continue profiting from merchandise sales since anyone would be free to undercut them in price.
The law provides for removing the trademark protection for brands that are deemed racially offensive. Given the longstanding provenance of the Washington Redskins brand, and the clout the team has in the nation’s capital, I’m surprised that this has happened so abruptly.
UPDATE: The Washington Post (“U.S. patent office cancels Redskins trademark registration, says name is disparaging“) has more details:
The United States Patent and Trademark Office has canceled the Washington Redskins trademark registration, calling the football team’s name “disparaging to Native Americans.”
The landmark case, which appeared before the Trademark Trial and Appeal Board, was filed on behalf of five Native Americans. It was the second time such a case was filed.
“This victory was a long time coming and reflects the hard work of many attorneys at our firm,” said lead attorney Jesse Witten, of Drinker Biddle & Reath.
Federal trademark law does not permit registration of trademarks that “may disparage” individuals or groups or “bring them into contempt or disrepute.” The ruling pertains to six different trademarks associated with the team, each containing the word “Redskin.”
“We are extraordinarily gratified to have prevailed in this case,” Alfred Putnam Jr., the chairman of Drinker Biddle & Reath, said. “The dedication and professionalism of our attorneys and the determination of our clients have resulted in a milestone victory that will serve as an historic precedent.”
The ruling does not mean that the Redskins have to change the name of the team. It does affect whether the team and the NFL can make money from merchandising because it limits the team’s legal options when others use the logos and the name on T shirts, sweatshirts, beer glasses and license plate holders.
In addition, Native Americans have won at this stage before, in 1999. But the team and the NFL won an appeal to U.S. District Court in 2003. The court did not rule on the merits of the case, however, but threw it out, saying that the plaintiffs didn’t have standing to file it. The team is likely to make the same appeal this time. Team officials are expected to make a statement this morning.
We’ll see, I guess, whether the team gets injunctive relief. Public sentiment is definitely moving against these nicknames, so there’s a different climate than eleven years ago.
While I’m very sympathetic to the plaintiffs here—there’s simply no way that a major sports league would sanction such a name for a new team—it strikes me as rather foul that the team should continue to have to fight to maintain its rights so soon after having won. The previous case was decided a mere 11 years ago and this one came almost right away, having been in the works for 8 years. The same claim shouldn’t be able to be re-litigated so soon; it creates an unreasonable burden on a rights holder that doesn’t happen to be a multi-billion dollar corporation.
UPDATE 2: Vox’s Joseph Stromberg argues that it’s different this time:
For decades, various groups of Native Americans have been trying to use this law to cancel the “Redskins” trademark. In 1992, a group led by Suzan S. Harjo filed a similar suit, and the Patent and Trademark Office agreed with them in 1999, canceling the trademark.
But the team appealed, and in 2003, a federal judge reversed the order, ruling that the plaintiffs hadn’t shown sufficient evidence that the name was insulting enough to justify the cancellation. An additional problem was that the trademark had been in place for decades, and the plaintiffs had waited to file, allowing the team to invoke the legal concept of laches — basically, the idea that the Native Americans had taken too long to challenge the name, and had thereby waived their rights.
In 2006, a new group of seven plantiffs led by Navajo Amanda Blackhorse filed a similar suit. Their ages ranged from 18 to 24 at the time of filing — eliminating the team’s laches defense — and they presented significantly more evidence (in the form of academic articles, linguist testimony, film clips, newspaper clippings, and other media) that the team name is an ethnic slur. The court agreed, by a 2-1 margin.
Now, I’m not a lawyer but the notion that younger plaintiffs changes anything strikes me as silly. The team has been known as the “Redskins” since 1933 and the “Washington Redskins” since moving from Boston in 1937. Several generations of American Indians have had the ability to sue over the trademark. The clock shouldn’t reset with every new Amerindian birth. Indeed, given that anti-Native American prejudice was almost surely more rampant—and that “redskin” was much more likely to actually be used as an intentional slur—then than now would seem to water down the legal claim. At this point, when most people hear the name “Redskins,” they’re thinking of the NFL franchise, not a group of people.
Again, I think the team should change its nickname on the basis that it’s clearly offensive to a significant number of their fellow citizens. But the legal claim that they should lose their trademark protection strikes me as exceedingly weak.
