Friday, March 8, 2013

The "Redskins" mark should not be entitled to federal trademark protection.

On Thursday, the legitimacy of the Washington Redskins' trademark was argued in the Trademark Trial and Appeal Board (TTAB) at the United States Patent and Trademark Office. At issue was whether "Redskins" is entitled to federal trademark protection. The court has not decided and likely will not decide for some time.

In 1999, the TTAB heard the same issue. In that case, the court determined that if a substantial composite of the general population associated the mark with something other than its racist connotation, then the mark is capable of federal trademark registration. The court found that continuous use, recognition and acceptance of "Redskins" in connection with the football team outweighed the racist meaning of the word.

The last sentence of that decision noted that the Redskins' trademark will be cancelled at some point in the future. The court recognized that society inexorably becomes more sensitive over time.

In the 1999 decision, the court essentially said that because the "Redskins" mark is more identifiable with the football team than as a derogatory ethnic term, it is acceptable. Following this logic, any term used long enough as a football nickname would be entitled to federal trademark protection, no matter how offensive it is. "Redskins" was first used in the 1930s. There were a lot of derogatory words used in the 1930s that are no longer acceptable today. Imagine a team named the [insert slur referring to African Americans], or the [insert slur referring to Irish people], or the [insert slur referring to Catholics], or the [insert slur referring to Asians], or the [insert slur referring to Jewish people]. Following the court's reasoning, any of those nicknames would still be registered with the trademark office today, based on the Washington football team's continuous use of the "Redskins" mark.

The court's reasoning in 1999 was bad. A lot of words from the 1930s are not acceptable in society today. Simply because Washington's football team has used the name continuously does not mean it is any less offensive.

If the TTAB determines that "Redskins" is no longer entitled to federal trademark registration, it does not mean the team would automatically change their name. It means that they would no longer be entitled to federal trademark protection. They would still have common law rights. They would still have customer recognition among fans. But they would likely change their name, in order to protect their intellectual property going forward.

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