What the Redskins decision means – and doesn’t mean

As you likely know by now, yesterday the Trademark Trial and Appeal Board (TTAB) at the USPTO ruled that six trademark registrations featuring the word “REDSKINS” belonging to the Washington Redskin’s football team are disparaging to Native Americans. As a result, the TTAB ordered the USPTO to cancel the registrations.

What is the effect of the TTAB decision?

  • The six registrations at issue will not be cancelled just yet – an appeal can and will likely be filed within two months of the ruling, thereby postponing (‘staying’) the cancellations. The dispute began many years ago, and may continue for many more in a variety of courts. An appeal of the TTAB decision could be brought to the Court of Appeals for the Federal Circuit or to a District Court.
  • The team can still use the REDSKINS name and could continue to use the name even if the registrations at the USPTO are eventually cancelled. The (potential) loss of the registrations does not mean the name cannot be used.
  • Despite some reports claiming that now anyone can sell REDSKINS gear, others would not be wise to try to use the name for merchandise or in other potentially infringing manners, as the team can still attempt to assert state and common law rights in the REDSKINS name. In addition, the team can still assert rights in their logos and may attempt to assert rights in the burgundy and gold color scheme.

If the TTAB reached the correct decision in 2014, in essence it means the USPTO was wrong to issue the registrations as far back as 1967

  • The ruling of the TTAB essentially means that the USPTO should never have registered the trademarks beginning in 1967 – since this week’s ruling made it clear that the decision was based on the evidence at the time the registrations were issued.  [“The only issue left for decision is the second question in the disparagement test (was the meaning of the marks, at the times of the registrations, one that may have disparaged Native Americans?) as it pertains to the term REDSKINS.”]
  • According to the TTAB, the USPTO erred in granting the registrations between 1967 and 1990 (although the USPTO did not necessarily have all the evidence in front of it at the time). As a result of the decision to grant the registrations in the first place, millions of dollars of and thousands of hours have been spent on the dispute over the REDSKINS trademarks. Many of those dollars and hours were spent by the USPTO (and tax payers), and many more by the parties involved.
  • What if the USPTO had decided in 1967 that the REDSKINS name was disparaging and refused the team’s application to register the trademark then? Perhaps the team would have long ago opted to change the name so it could avail itself of the many benefits of a USPTO trademark registration? Imagine how much money, and how much pain, might been avoided if the USPTO had never issued the registrations…

More to follow…. As this is surely not the end of this issue.

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