NFL’s Redskins Appeal Ruling That Team Name Is Offensive

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Trademark Trial
The trademark board determines only whether a mark can be registered with the U.S. government, not whether it can be used. Photographer: David Paul Morris/Bloomberg

The Washington Redskins appealed a decision that the football team’s name was disparaging to American Indians and no longer entitled to federal trademark protection, escalating a two-decade dispute over a brand worth an estimated $145 million.

The National Football League team seeks to reverse a federal panel’s ruling because there was “insufficient evidence” of the name being offensive to American Indians from 1967 to 1990, when the six trademarks were registered, according to a complaint filed yesterday in federal court in Alexandria, Virginia.

“We believe that the Trademark Trial and Appeal Board ignored both federal case law and the weight of the evidence, and we look forward to having a federal court review this obviously flawed decision,” Bob Raskopf, an attorney for the Redskins, said in a statement.

The board’s decision, if left intact by the court, would make it harder for the team to enforce trademark rights and protect the revenue associated with them. The Redskins ranked 10th in merchandise sales of the NFL’s 32 teams as of October, according to the league, which has about $9.7 billion in annual revenue. Merchandise revenue is shared equally among NFL teams.

The franchise ranked third in the NFL in August with a valuation of $1.7 billion, including $145 million attributable to its brand, according to Forbes.

Cancellation Recommendation

The trademark office considers hundreds of thousands of applications each year and is required to scrutinize names that may inspire contempt or disrepute. The only standing trademark that the office has recommended canceling, though, is that of the Redskins, according to Jesse Witten, a lawyer at Drinker Biddle & Reath LLP in Washington. Witten, a onetime appointee of Republican President George W. Bush to the Justice Department, represented American Indians who asked the trademark office to cancel the registration.

Redskins owner Daniel Snyder has said the name was intended to honor Native Americans and he won’t change it.

The board’s ruling violated constitutional free speech and due process rights, the team said in its complaint.

“The cancellation of the Redskins marks constitutes an unconstitutional taking” of the team’s property “without just compensation,” according to the filing.

Earlier Win

The Redskins won a separate appeals court ruling in May 2009 over whether the trademarks should be canceled, ending a legal fight that began in 1992. The court in that case ruled that the plaintiffs waited too long to complain. The current case involves younger people.

Founded in 1932 as the Boston Braves, the team was renamed in 1933 as the Boston Redskins in tribute to its head coach, an American Indian, according to court records. The team moved to the District of Columbia in 1937.

The benefits of trademark registration include the legal presumption of ownership and a nationwide scope of rights related to the mark; the ability to use the federal registration symbol; and the ability to register the mark with the U.S. Customs and Border Patrol Service to block the import of counterfeit goods.

The trademark board determines only whether a mark can be registered with the U.S. government, not whether it can be used. The Redskins may still have rights to the mark based on use, known as “common law” rights, and such rights may continue to exist even if a federal registration is canceled, according to a board explanation of its decision.

Public Opinion

In attempting to enforce legal rights, however, the Redskins also would be waging an increasingly difficult battle in the court of public opinion.

President Barack Obama in October told the Associated Press that if it were his team, he’d consider a name change and half the U.S. Senate in May urged NFL Commissioner Roger Goodell to support a switch, citing National Basketball Association Commissioner Adam Silver’s speedy action toward former Los Angeles Clippers owner Donald Sterling’s racist comments.

Former Virginia Senator George Allen, whose father was the Redskins’ longtime coach and whose brother, Bruce, is its president, has supported the status quo.

The case is Pro-Football Inc. v. Blackhorse, 14-cv-01043, U.S. District Court, Eastern District of Virginia (Alexandria).

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