The United States Patent and Trademark Office issued an opinion on Wednesday that six trademarks registered by the National Football League’s Washington Redskins must be cancelled because they disparage American Indians. The decision gives hope to petitioners who been seeking to strip the team of federal trademark protection since 1992.
The opinion from the Trademark Trial and Appeal Board affirms three key claims: The name and symbols of the team carry an association to American Indians; they are disparaging to a substantial number of people; and the team trademarks were offensive at the time they were registered, from 1967 to 1990.
The U.S. code passed in 1946 forbids registration of trademarks “which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” The disparagement must be present at the time of the registration to be unlawful. The ruling today says that it was:
Petitioners have shown by a preponderance of the evidence that a substantial composite of Native Americans found the term Redskins to be disparaging in connection with respondent’s services [the football team] during the relevant time frame of 1967-1990.
The ruling confirms an opinion the board issued in 1999 on a petition submitted seven years earlier by a group of American Indians led by Suzan Harjo. That ruling was overturned on appeal in 2003, a decision upheld by the D.C. Circuit court in 2009. The 2009 ruling, however, claimed only that the petitioners had waited too long after reaching the age of 18 to lodge their complaint. It left open the matter of the merits of their petition. In 2006, a new, younger group led by Amanda Blackhorse filed a new petition—the one granted today by the PTO.
Bob Raskopf, the team’s trademark attorney, issued a statement saying that the ruling will have “no effect on the team’s ownership of and right to use the Redskins name and logo.” Raskopf says the team is is confident that the ruling we will be overturned on appeal: “This case is no different than an earlier case, where the Board cancelled the Redskins’ trademark registrations, and where a federal district court disagreed and reversed the Board.”
The team will maintain its registrations while it appeals. And even if the cancellations are upheld, it will enjoy protection of its trademarks against infringement under federal law. Registration is one way of demonstrating ownership of words or marks for a particular commercial purpose. It is not the only way. The Redskins, if they wanted to sue an infringer, could establish their claim to the name and logo by demonstrating their prior use of the unregistered marks, but this would be uncharted legal territory for an NFL team.
It would also mean fighting an increasingly difficult battle in the court of public opinion. The steady trickle of protest has become a torrent in the last couple years, with President Barack Obama and a 50 U.S. Senators among many voices calling for change.
At some point, perhaps one already crossed, it would become easier and wiser to abandon the name. If and when team owner Dan Snyder relents, we have some new names and logos at the ready.