This past June, the Trademark Trial and Appeal Board (TTAB) of the United States Patent and Trademark Office (USPTO) decided that trademarks that had been issued to the Washington Redskins between 1967 and 1990 should be terminated because they are disparaging to Native Americans. These marks include the logo of the Native American face that we are all familiar with on Redskins helmets.
In order to come to this conclusion, the TTAB had to decide whether:
the way the Redskins mark is used by the team is a reference to Native Americans; and
if that meaning disparages Native Americans.
These were easily answered by the TTAB in the affirmative; especially because the meaning does not have to disparage all Native Americans, but rather a decent-sized portion of them. Because of this ruling, the Redskins’ trademarks were cancelled. But contrary to popular belief, this didn’t mean that the Redskins could no longer use the mark, it just meant that the team no longer has the power to keep others from using the name without its permission and the team could lose the right to exclusively make and license products with the Redskins logo.
So naturally, the Redskins filed a lawsuit in federal court to attack the decision. The Redskins are challenging the decision by raising First Amendment challenges and arguing that it is unconstitutional to allow federal registration of a trademark that praises a group but not one that disparages a group. However, many federal appellate courts over the years have held that in this type of situation, there are no First Amendment problems because the non-registration of a trademark does not prohibit speech. According to trademark law, even though your trademark may not be registered, you can still use it and therefore, there is no violation on the freedom of speech.
At this point, the parties will be presenting evidence on whether or not the trademark is substantially disparaging enough to be cancelled. In the meantime, Redskins’ owner Dan Snyder has decided not to voluntarily change the name of the team until he is legally forced to do so; and while the decision is still pending, he doesn’t have to. The NFL on the other hand, has concerns of provoking its advertising partners and the government by allowing derogatory names. For example, the FCC could choose to intervene and fine the league every time the term Redskins is used if it decides that the term is actually derogatory.
Although it’s unlikely that this case would go all the way to the Supreme Court, we still could be waiting a great amount of time before the federal court reaches any sort of conclusion. With some commentators speaking out on the issue and referring to the team only as Washington, to all the media coverage on the protests surrounding the discrimination issues this mark brings up, we can safely bet that you’ll be hearing about Washington Redskins Trademark Lawsuit for years to come.