On Wednesday, June 18, a United States Patent and Trademark Office tribunal cancelled the Washington Redskin’s trademarks. Because Native Americans groups are in the extreme minority in the United States, the removal of company and sports team trademarks that are disparaging to Native Americans has been a slow-moving process. This particular decision came after decades of outcry from Native American groups nationwide that argued maintaining the Redskins name and trademarks allowed the NFL to unfairly profit off of the denigration of Native American peoples.
Native American groups lobbied the USPTO for decades, arguing that the trademarked name “Redskins” and the Redskins’ Indian mascot are offensive racial slurs that also imply a false connection to Native Americans. See Kimberly A. Pace, The Washington Redskins Case and the Doctrine of Disparagement: How Politically Correct Must a Trademark Be?, 22 Pepp. L. Rev. 7, 13. The Washington Redskins is cited as one of most offensive professional sport team names because the trademark, unlike the marks of teams such as the Cleveland Indians or the Atlanta Braves, speaks more to a racial derogation of skin tone than a general reference to Native Americans.
The cancellation of the Redskins trademarks is permissible under the Lanham Act. The Lanham Trademark Act of 1946 allows for a trademark to be rejected by the USPTO on the basis that it is disparaging to a group of people or falsely suggests a connection with a particular people. 15 U.S.C.A. § 1052(a).
The expected appeal in this decision will likely argue that the name “Redskins” celebrates Native Americans rather than denigrates them. In a similar matter involving the use of the word “redskin” on Utah state license plates, the Supreme Court of Utah ruled that the standard of an objective, reasonable person was appropriate in determining whether a term on a license plate was derogatory. McBride v. Motor Vehicle Div. of Utah State Tax Com’n., 977 P.2d 467, 470-71 (Utah 1999). It seems appropriate that a similar standard would be persuasive here on appeal.
Currently, the Redskins will retain federal trademark protection throughout the appeals process. If the Redskins’ appeals are unsuccessful, the trademark registration will be permanently cancelled.
The lack of trademark protection would have the biggest effect on the sale of official merchandise – which is one of the biggest income generators for any professional sports franchise. The removal of the Redskins name and mark’s trademark protection would greatly limit the organization’s ability to protect against other organizations using similar marks or against the Redskins unsanctioned trademark’s use on counterfeit merchandise. Without the federal protection of a registered trademark, the door to cheaper, counterfeit team merchandise would open and eventually drive down the price of official Redskins gear. In the future, the Redskins team could also be forced into expensive litigation every time the need to defend its brand arose.
Even after the trademark cancellation is final, the Washington Redskins will not be barred from using its name or logo in conjunction with the team. The cancellation only affects the mark’s federal protection under trademark law. However, the economic impact on the organization may be significant enough to render the Redskins name and Indian trademark no longer fiscally responsible as trademarks. The appeals process itself will also be a costly one, and it will only draw further negative attention to the controversy. While the USPTO’s decision may not strip the Redskins of its team name and trademark, it might just provide the economic and PR push that the organization needs to rebrand the team and find a different name.