The United States Patent and Trademark Office ruled on Wednesday that the Washington Redskins name is not subject to trademark protection because “€œbased on the evidence properly before us … these (trademark) registrations must be canceled because they were disparaging to Native Americans at the respective times they were registered.”
The Redskins initially registered the trademarks in 1967, but in recent years the criticism over the name has increased in intensity. So far, Redskins owner Dan Snyder has refused all requests to change the team name and the vast majority of Redskin fans have supported this decision. But with this ruling to strip the team of their trademark protections, the pressure to change the team name will likely grow.
So what’s the practical impact? Let’s review some key questions:
1. What’s the immediate impact of the ruling?
Assuming a stay of the ruling is granted — that is, the ruling is not immediately enforced pending appeal — the Redskins will have the right to appeal this decision and seek to overturn the ruling. If overturning this decision sounds unlikely, think again, the same ruling occurred in 1999, but was overturned due to a technicality on appeal. The appeal process will likely take years. During that time, nothing will change. That’s why the Redskins official statement says as follows: “We are confident we will prevail once again, and that the Trademark Trial and Appeal Board’€™s divided ruling will be overturned on appeal. This case is no different than an earlier case, where the Board cancelled the Redskins’€™ trademark registrations, and where a federal district court disagreed and reversed the Board.”
What this decision does do, however, is increase the political pressure that has been building on the Redskins to change their name.
2. How can trademark protection be removed once it has been granted?
The trademark office is essentially saying it made a mistake when it granted the trademark in 1967. Due to the fact that the term “Redskin” was disparaging at the time of issue — as determined by evidence from 1967 introduced by the plaintiffs — then the trademark was granted in error.
3. What about teams like the Florida State Seminoles, the Utah Utes, the Cleveland Indians or the Atlanta Braves, how does this decision impact their trademarks given clear associations with Native American tribes as well?
The Florida State Seminole and the Utah Utes have been endorsed by the tribes so their trademarks are likely safe. The Cleveland Indians and the Atlanta Braves would both be subject to trademark challenge as well, but the terms “Indian” and “Brave” are unlikely to be seen as derogatory at the time those trademarks were granted. To protect themselves from political pressure, both teams have moved to eliminate direct association with Native Americans as well, replacing mascots and logos that connected the team names to Native American history.
4. So can anyone make Redskins gear now?
Again, that depends on whether the stay is granted. The Redskins have trademarks on their team name, but if those trademarks are invalidated then the team could lose the right to exclusively make and license products with the Redskin name. The team could still, however, have a copyright on its logo. So the actual Redskins logo would still have copyright protection even if the team’s name didn’t have trademark protection.
5. What’s the difference between a copyright and a trademark?
In the simplest sense, a copyright exists as soon as an original object is fixed in a tangible medium. That is, as soon as the Redskins created their logo, the team had copyright protection over that particular logo, uniform, and its color representation without any necessity of filing to protect it. It would be a violation of copyright law if someone else made a product that identically replicated the team’s logo. The team also has a copyright argument when it comes to team colors in conjunction with the name, jerseys, and representations of the team such as the head logo and the like.
The trademark protects the particular name of the product to avoid confusion. That is, it would be a violation of trademark protection for someone else to make a product that references the Washington Redskins, whether the official team logos, colors, or jerseys are used or not. The dual protections of copyright and trademark are integral to protecting a brand’s value.
6. What’s Redskins owner Dan Snyder’s end game here?
Snyder has made the decision to fight all demands that he change the name of the team. From a business perspective, that’s probably smart. Here’s why: if he voluntarily changes the team name without being forced to do so he alienates a certain segment of the Redskins fan base. These fans would forever blame Snyder for bowing down to opponents of the team name. If Snyder fights demands for a name change three things can happen: a) he wins, in which case he doesn’t have to change anything. b) he loses, in which case he can claim he’s been forced to change the team name. Changing the team name would likely result in a huge increase in merchandise sales as everyone rushed to buy the new gear, but Snyder would be able to claim he had no choice. c. Snyder can lose the trademark protections and continue to run the franchise without them.
7. What about the NFL’s position?
The NFL’s in a more difficult position than the team because the league doesn’t want to provoke the ire of the government or advertising partners by allowing derogatory team names. What if the FCC decided that Redskins was a derogatory term and began to fine the league and league partners every time the term is used on television? What if advertisers faced real pressure from consumers over the inclusion of the Redskin name and logo in the NFL broadcasts?
Then the league could be forced to demand a name change. In the meantime, the NFL will likely argue that Snyder deserves the right to appeal this ruling.
8. Could the Redskins keep their name without trademark protection?
Sure, the team could. How much money would the loss of trademark protection actually cost the Redskins if the team continued to sue for copyright violations? Probably not that much. After all, the money that teams make off their trademarks is comparatively small when compared to television and ticket money. Plus, even without trademark protection, major companies aren’t going to risk copyright lawsuits in order to make a relatively insubstantial sum of money off Washington Redskins products.
While the plaintiffs who filed this lawsuit believe the Redskins will be forced to change their name without trademark protection, that seems unlikely. The real threat to the name comes from political pressure, threats from the FCC over television broadcasts, and advertisers bailing from association with the team and league. So long as that doesn’t happen, the Redskins name will continue.