The Washington Redskins never ending battle to defend their name from everyone who isn't a Redskins fan knowing that it is racist took a serious hit today when the United States Patent and Trademark Office cancelled six of the team's federal trademarks on the basis that they are offensive.
Petitioners, five Native Americans, have brought this cancellation proceeding pursuant to Section 14 of the Trademark Act of 1946, 15 U.S.C. § 1064(c). They seek to cancel respondent’s registrations issued between 1967 and 1990 for trademarks consisting in whole or in part of the term REDSKINS for professional football-related services on the ground that the registrations were obtained contrary to Section 2(a), 15 U.S.C. § 1052(a), which prohibits registration of marks that may disparage persons or bring them into contempt or disrepute. In its answer, defendant, Pro-Football, Inc., asserted various affirmative defenses including laches.
As explained below, we decide, based on the evidence properly before us, that these registrations must be cancelled because they were disparaging to Native Americans at the respective times they were registered, in violation of Section 2(a) of the Trademark Act of 1946, 15 U.S.C. § 1052(a). This decision concerns only the statutory right to registration under Section 2(a). We lack statutory authority to issue rulings concerning the right to use trademarks.
The trademarks, shown on pages 2-4 of the ruling, are two "for the mark REDSKINS, in typed drawing form, for "entertainment services – namely, presentations of professional football contests"," three logos, including this:
and one "for the mark REDSKINETTES, in typed drawing form, for "entertainment services, namely, cheerleaders who perform dance routines at professional football games and exhibitions and other personal appearances"." The Hogettes were unaffected by this ruling, though they are probably upset.
UDPATE: The Redskins have, as expected, responded. One part of their response is to re-release their hilariously failed attempt to drum up support by chastising Senator Harry Reid. They also released a statement from their lawyer, which you can read in full here:
"We’ve seen this story before. And just like last time, today’s ruling will have no effect at all on the team’s ownership of and right to use the Redskins name and logo.
Pay no attention to this magic trick, that was not what the ruling was. The ruling means that the team no longer has a legal method to stop others from using the term. If this holds up in appeal they are free to use the logo and name as long as they like, but so are you, to an extent. (More on that later.) It continues:
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. As today’s dissenting opinion correctly states, "the same evidence previously found insufficient to support cancellation" here "remains insufficient" and does not support cancellation.
Technically true, but this and another quote:
In today’s ruling, the Board’s Marc Bergsman agreed, concluding in his dissenting opinion:
It is astounding that the petitioners did not submit any evidence regarding the Native American population during the relevant time frame, nor did they introduce any evidence or argument as to what comprises a substantial composite of that population thereby leaving it to the majority to make petitioner’s case have some semblance of meaning.
avoid the end of Bergsman's dissent (emphasis his):
By this dissent, I am not suggesting that the term "redskins" was not disparaging in 1967, 1974, 1978, and 1990 (the registration dates at issue). Rather, my conclusion is that the evidence petitioners put forth fails to show that it was.
Bergsman has both set the stage for the Redskins to win on appeal, and laid out how a future case could be stronger. The appeal itself will take quite a while, this case was originally heard by the USPTO 14 months ago and originally filed in 2006, the previous case, Pro-Football, Inc. v. Harjo (Pro-Football, Inc. is the Redskins legal name, the Eagles is Philadelphia Eagles, LLC in case you were wondering) was first filed in 1992 and was overturned on a technicality in 2009.
Even if appeal is denied, the Redskins won't have to give up their name and they won't lose all their legal protections. Today's ruling is not a definitive benchmark, but rather a small but significant step towards the Redskins losing the racial slur that is their name. Today only increases the pressure that keeps piling on the Redskins.