The controversy surrounding the name “Redskins” used by the Washington Redskins football team is growing. Native Americans object to the name as well as the use of the familiar picture of a Native American shown on the helmets of Redskins. Some individual sportscasters have joined them in refusing to use the name or objecting to it in talks during half-time on national television. Even President Obama has weighed in on it. But team owner Dan Snyder and many fans defend the name, which they say is an 80-year tradition that is not intended to offend anyone. But, Native Americans are taking their case to the government as well as the court of public opinion. They are petitioning the Federal Communications Commission (FCC) to ban the word “Redskins” on the air waves.
Native Americans are also asking the Trademark Trial and Appeal Board of the U.S. Patent and Trade Office to unregister the team’s federally registered trademarks. A trademark is a word, phrase, symbol, or design or a combination of words, phrases, symbols, or designs, that identifies and distinguishes the source of the goods of one party form those of others. The Redskins registered trademarks include the team name and the picture of a Native American used on the team’s helmets. A federally registered trademark can last indefinitely. Most trademark registration objections are based on “likelihood of confusion” where one company objects that another company’s logo is too similar. But, the Native Americans are asserting a little-used legal argument that the trademarks should be unregistered by the federal government because they are “disparaging”. This argument is used when registered trademarks are accused of being “scandalous” or “disparaging” of a race or religion or because they include curse words. Interestingly, the Trademark Trial and Appeal Board must decide whether the trademark was “scandalous” or “disparaging” at the time it was registered, not today. The Redskins’ trademarks were registered in the 1960s, so that is the standard, not today, for deciding whether they can remain registered or not.
Even if the Redskins lose the case and the Trademark Trial and Appeal Board decides that the trademarks cannot be registered by the federal government, the team can continue to use the trademarks. The trademarks would still be protected by common law and state laws, but would lose the enhanced rights of registration under federal law. The Redskins could still sue for infringement of their long-held trademarks, but not based on a federal registered trademark.
Trademarks normally increase in value with length of use, advertising and sales because trademarks are symbols of the enterprise, creating goodwill for the business or organization. So, what impact would it have on the goodwill created for the team by its trademarks if the Trademark Trial and Appeal Board deemed the Redskins trademarks to be “disparaging” to Native Americans? Although the Redskins could continue to use the trademarks, would they continue to enjoy the same value they had before the Board decision? What impact on the trademarks would the negative publicity have if it rose to the level of a federal Board decision? Would it have any impact on sales of team merchandise bearing the name and symbols?
If the trademarks are unregistered by the Board, Redskins owner Dan Snyder could decide to give up on the long tradition of the Redskins trademarks and spend the estimated $20 million to change the team name and logo. But, it’s likely that team paraphernalia bearing the new name and logo, protected by federal registered trademarks, would enjoy brisk sales. Perhaps the profit from the sales would ease the sting, and recover the costs, of having to change the team name and logo.
Regardless of a person’s personal views on the subject of the Washington Redskins team name and logo, the case before the Board raises many interesting questions regarding trademark valuation and infringement.
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