By Stephen B. Schott
In a 2-1 split decision, the US Patent and Trademark Appeals Board canceled several trademarks owned by American football’s Washington Redskins today. The marks included: WASHINGTON REDSKINS, THE REDSKINS, several stylized variations of REDSKINS, and one mark whose commercial value seems dubious: THE REDSKINETTES.
The Washington Redskins have been under increasing pressure from activists and even 50 US Senators to change their name, and litigation seeking to cancel the REDSKINS name dates back to 1967. This latest decision is another chapter in this long battle.
In canceling the federal trademarks, the Board concluded that “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).”
The law permits refusal for registration or cancelation of any mark that “consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”
The opinion, including its dissent, weighed in at a Hog-like 99 pages and included a detailed review of testimony, history, media coverage, and third party submissions. For example, Kimberly Whitehead wrote this to former Redskins owner Jack Kent Cooke in 1993:
The Washington Redskins must go! No, not the team, but the name, which is totally demeaning of Native Americans and reinforces a negative stereotype that is unjust and unwarranted. The term “redskins” is out of a period when there was a bounty on the heads of Indians and they were scalped. Eighty cents for a man’s skin, 60 cents for a woman’s skin and 20 cents for a child’s skin. It is a period in our history that every American should be ashamed of and the continued use of such a derogatory and offensive term is an abomination. Ben Nighthorse Campbell, the only Native American in the U.S. Senate, says that “the name Redskins carries the same negative connotation as some terms that blacks and whites find offensive.”
Many people wrote in support of the name as well, and these letters and quotes are also included in the opinion, such as a letter from the Principal Chief of the Seminole Nation of Oklahoma, Jerry G. Haney, who expressed that “the use of the Redskins name by the Washington football team is a source of pride.”
The Board took note of several facts, including that “[f]rom 1983 on, all dictionary entries…include a usage label indicating the term [REDSKIN] is offensive, disparaging, contemptuous or not preferred.”
Based on the record as a whole, the Board concluded that “In view of the above, petitioners have shown by a preponderance of the evidence that a substantial composite of Native Americans found the term REDSKINS to be disparaging in connection with respondent’s services during the relevant time frame of 1967-1990. Accordingly, the six registrations must be cancelled as required under Sections 2(a) and 14(3) of the Trademark Act.”
Can the Redskins still use REDSKINS?
Yes, definitely. The Board was careful to note that it cannot deny someone’s use of a trademark, merely its federal registration. “This decision concerns only the statutory right to registration….We lack statutory authority to issue rulings concerning the right to use trademarks.”
And even if it loses its federal registration, the REDSKINS mark can still be asserted against would-be infringers based on the Washington Redskins’ state trademark registrations and common law rights. While this is a substantial loss to the Washington Redskins in losing some valuable intellectual property, the bigger loss may be that the Board validates the protests and heightens pressure on Redskins’ owner Daniel Snyder to change the team name.
What happens next?
After almost 50 years, this isn’t over. The Washington Redskins can appeal this decision and where it goes on appeal from this divided Board decision is pure speculation, although the media and political pressure might play a role in upholding the decision.
Editor’s Note. The author of this article is prone to bias when it comes to American football teams, especially those that beat his beloved Buffalo Bills in the Superbowl. I don’t care if the Washington Redskins win a football game or court case ever again. By the way, I’m waiting on the Buffalo Bills to get sued by all the Williams of the world for disparaging their good names.
If you have questions, contact me.
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