By Andrea Noble The Washington Times
The legal challenge against the Redskins was brought in 2006 by five American Indians who filed a complaint with the Trademark Trial and Appeal Board on the grounds that laws prohibit “registration of marks that may disparage persons or bring them into contempt or disrepute.”
The ruling, which looked in detail at the history of the team’s name and logo and the use and connotations of the word “redskins,” impacts the team’s name and the name of the cheerleader squad, the Redskinettes, as well as a series of stylized logos registered between 1967 and 1990.
The ruling was affirmed 2-1 by a three-judge panel and written by Administrative Trademark Judge Karen Kuhlke. Also on the panel were Judge Peter W. Cataldo and Judge Marc A. Bergsman. All three judges were appointed during the administration of former President George W. Bush.
Judge Bergsman dissented from the decision to cancel the trademark, saying “To be clear, this case is not about the controversy, currently playing out in the media, over whether the term ‘redskins,’ as the name of Washington’s professional football team, is disparaging to Native Americans today.”
The judge said the panel was tasked with deciding whether the term was disparaging at the time each of the challenged registrations was issued, and in an 18-page dissent he was deeply critical of the arguments supporting that position.
Rose Law Group attorney Evan Bolick comments:
Between this and the Donald Sterling proceedings, sports leagues that seek to avoid controversy like a Quarterback scrambling away from an all-out blitz have been thrust in to the of the national limelight on the nature of racial politics and free speech. Growing up in the Washington D.C. area, I know first-hand how popular and beloved the team is in the region and have friends who are fans of the team but fall on opposite sides of the debate. Not to minimize the Redskins plight, but the Patent and Trademark Office made the right decision.
Federal law has long been clear that trademark protections can’t be extended to words, phrases, logos or other marks that are disparaging. There is no doubt that historically, objectively, and subjectively, the term “Redskins” is disparaging.
Many frame this as a freedom of speech issue. I believe that is the wrong lens to view this case. The team may still utilize the term “Redskins” regardless of whether the term has trademark protections, and it is more than possible that the team continues to have common law (i.e., non-statutory) protections. Unless and until the government prevents the team from actually using the name itself, any claims of attacks on free speech are largely without merit. Further, the logo itself maintains its trademark and copyright protections, and there is no reason to believe that such protections would be cancelled or abridged any time soon. Instead, the loss of the trademark hits the team predominantly in the wallet, a situation they can address if they voluntarily change their name and apply for a new trademark.
Assuming the decision is not overturned on appeal, it will be interesting to see if action is taken against teams such as the Cleveland Indians or Atlanta Braves. The historical, objective, and subjective “disparaging nature” of these terms are far less obvious than it is for the term “Redskins.” This decision, however, would embolden any opponents to those names to take action. It would also be interesting to see if the Redskins attempt to sue the government for injuring its brand, which it has spent substantial time and money to build on reliance on the now-cancelled trademark. No matter what happens though, the battle over this trademark is far from over.
Evan Bolick can be reached at ebolick@roselawgroup.com
