Redskins merchandise safe for now

 

The Washington Redskins won't take an immediate financial hit after the U.S Patent and Trademark Office ruled to cancel six of the team’s trademarks, according to legal experts. 

In the near term, the team will only have to deal with legal fees resulting from an appeal, since the ruling leaves the trademarks in place until the court rules on the issue, which could end up taking years. 

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Lawyers said the team continues to have rights over the logo alone that does not include the name "Redskins," which was found to be disparaging. 

"Even if the ruling is upheld, the logo remains protected, which will allow it to act against many unauthorized commercial uses," said Rebecca Tushnet, a Georgetown law professor who focuses on trademark law.

The Patent Office’s Trademark Trial and Appeal Board issued a 2-1 ruling Wednesday to cancel six trademarks, including a number of trademarks used in radio, television and print. The Redskins immediately expressed confidence in their appeal. 

"It all depends on what happens on appeal," said Barton Beebe, a New York University Intellectual property law professor. "If they lose on appeal, they can still assert property rights in the logo alone and perhaps base their merchandising on that."

Both professors predicted chances are good the Redskins would prevail on appeal, much like they did in a previous case in 2003.

In a fact sheet included alongside the decision, the Trademark Office notes that the team would not lose all legal protections if the ruling is upheld. 

The board determines only if the marks can be registered with the federal government to get additional legal protections, including restricting foreign counterfeits from being imported to the United States.  

"This is because trademark rights in the United States come from use of a mark on or in conjunction with goods or services, not merely from the additional, optional step of federal registration," according to the office. 

Some "common law" rights for protection might still exist aside from a federal trademark. 

However, Tushnet noted that there are a number of older cases that found trademarks cannot be enforced under common law if they are found to violate public policy on the federal level. 

"But those are old cases, and the issue would have to be litigated state by state. Most likely, the team would retain some common law rights," she said. 

Relying on state law to protect the Redskins marks seems to be a distraction though, Barton said, because it would be ineffective in practice. 

"The NFL organization would have to persuade the many state courts to protect a mark that has been deemed disparaging at the federal level," he said. "They might win here and there but I can’t see how this would form the basis for effective nationwide merchandising."

Shortly after the decision, a number of Democratic lawmakers who have pushed for a name change predicted the ruling would strike a blow to the team's financial incentives. 

"It’s putting a big dent in the business case that the NFL has made," Sen. Maria Cantwell (D-Wash.) said on the Senate floor Wednesday. "This is not the end of this case but this is a landmark decision by the patent office."

"The Redskins no longer have trademarks," Senate Majority Leader Harry Reid (D-Nev.) said. "They are gone. And so as I understand the law, if the presiding officer wants to use the name 'Redskins' to sell some shirts, you can do that."